Performance of Functions; Claims for Compensation Under the Federal Employees' Compensation Act; Compensation for Disability and Death of Noncitizen Federal Employees Outside the United States
[6/28/2011]
[PDF]

Federal Register, Volume 76 Issue 124 (Tuesday, June 28, 2011)

[Federal Register Volume 76, Number 124 (Tuesday, June 28, 2011)]
[Rules and Regulations]
[Pages 37898-37952]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-14915]
[[Page 37897]]
Vol. 76
Tuesday,
No. 124
June 28, 2011
Part II
Department of Labor
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Office of Workers' Compensation Programs
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20 CFR Parts 1, 10 and 25
Performance of Functions; Claims for Compensation Under the Federal
Employees' Compensation Act; Compensation for Disability and Death of
Noncitizen Federal Employees Outside the United States; Final Rule
Federal Register / Vol. 76 , No. 124 / Tuesday, June 28, 2011 / Rules
and Regulations
[[Page 37898]]
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DEPARTMENT OF LABOR
Office of Workers' Compensation Programs
20 CFR Parts 1, 10 and 25
RIN 1240-AA03
Performance of Functions; Claims for Compensation Under the
Federal Employees' Compensation Act; Compensation for Disability and
Death of Noncitizen Federal Employees Outside the United States
AGENCY: Office of Workers' Compensation Programs, Department of Labor.
ACTION: Final Rule.
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SUMMARY: On August 13, 2010, the Department of Labor (DOL) proposed
revisions to the regulations governing the administration of the
Federal Employees' Compensation Act (FECA). The FECA provides benefits
to all civilian Federal employees and certain other groups of employees
and individuals who are injured or killed while performing their jobs.
At that time, DOL also proposed revisions to the regulations
establishing the authority of the Office of Workers' Compensation
Programs (OWCP) which administers the FECA.
The proposed changes were summarized in that publication. The
existing rules have been amended to acknowledge a change in the
organization of the OWCP and amendments to the FECA which have occurred
since the last time the regulations were amended in 1999. These changes
also update the regulations by taking into account changes in
technology and other changes to improve administrative efficiency. As
many FECA claimants are not represented, the regulations are revised to
insert FECA statutory references as a frame of reference for clarity
and ease of use. The regulations include adding the skin as an organ
pursuant to 5 U.S.C. 8107(c)(22). The regulations also create a new
special schedule covering injuries to non-citizen non-resident Federal
employees outside the United States. Finally, the regulations covering
the processing of medical bills have been updated to provide for
greater use of technology in that process to reduce costs and to
clarify requirements for such submissions.
DATES: Effective Date: This final rule is effective on August 29, 2011.
FOR FURTHER INFORMATION CONTACT: Douglas Fitzgerald, Director, Division
of Federal Employees' Compensation, Office of Workers' Compensation
Programs, U.S. Department of Labor, Room S3229, 200 Constitution
Avenue, NW., Washington, DC 20210, Telephone: 202-693-0040 (this is not
a toll-free number). Individuals with hearing or speech impairments may
access this telephone number via TTY by calling the toll-free Federal
Information Relay Service at 1-800-877-8339.
SUPPLEMENTARY INFORMATION: Proposed regulations were published in the
Federal Register on August 13, 2010 (75 FR 49596). They allowed a 60-
day period for comment, during which the DOL received timely comments
from 251 parties: one comment was submitted by a Federal employing
agency; two comments were received from labor organizations
representing Federal employees; one comment was received from a medical
professional association; 173 comments were received from private
individuals; and 74 comments were received from attorneys. Also, 44
untimely comments were received from private individuals and attorneys;
the points made by these commenters echoed those made in comments that
were timely submitted. Almost all of the comments addressed the
reinsertion of the FECA's explicit bar on receipt of contingency fees.
Furthermore, a number of the comments addressed scheduling of hearings
before the Branch of Hearings and Review and a proposed change in how a
request for reconsideration is determined to be timely. A smaller
number of comments addressed changes in language regarding suitable
employment and loss of wage earning capacity determinations. Finally,
individual comments were received addressing a small number of issues,
including changes to procedures involving Peace Corps volunteers,
questions regarding verbiage, and a number of issues not raised by the
proposed changes to the FECA regulations. All of these comments are
addressed below.
Two minor changes have been made to the notice of proposed
rulemaking that did not result from any comments. The first change
clarifies language in Sec. 10.104 to promote ease of reading. The
second change was to Sec. Sec. 10.619, 10.818 and 10.819, which added
``or equivalent service from a commercial carrier'' in situations where
OWCP is to use certified mail, return receipt requested when mailing
notices or decisions. This change will provide greater flexibility in
such mailings while providing for proof of receipt.
When publishing a final rule following a comment period, it is
customary to publish only the changes that have been made to the rule;
however, in order to be more user-friendly, OWCP is publishing the
entire rule, including the parts that have not been changed. By doing
so, only one document containing all of the regulations and commentary
needs to be consulted rather than multiple documents.
I. Comments on the Notice of Proposed Rulemaking
The section numbers used in the headings of the following analysis
are those that were used in the notice of proposed rulemaking. Unless
otherwise stated, the section numbers in the text of the analysis refer
to the numbering used for the final regulations. No comments were
received with respect to parts 1 and 25.
Section 10.16
One attorney suggested that the addition of language to subsection
(b) of this section which discussed actions under the False Claims Act
indicated that OWCP was changing this section to allow other agencies
to institute actions under the Program Fraud Civil Remedies Act. The
addition of this language was only intended to notify employees that
suits may be maintained under the False Claims Act. As such, the
comment is well taken in that it indicates that placing this language
in subsection (b) reduced the clarity of the regulation. Accordingly,
the language has been moved to subsection (a).
Section 10.104
Two labor organizations recommended the abbreviation ``i.e.'' be
changed to ``e.g.'' because surgery is only one of multiple reasons
that could support payment of wage-loss compensation for a limited
period of disability in the presence of a loss-of-wage-earning-capacity
determination. While OWCP does not think that such modification is
required, the language has been changed to ``such as'' in an attempt to
address the concerns expressed by the commenters and to add clarity
through the use of plain language.
Section 10.310
One medical provider noted that Round 1 of Medicare's Durable
Medical Equipment, Prosthetics, Orthotics and Supplies (DMEPOS)
Competitive Bidding process covers only a limited number of
metropolitan areas and closed on November 4, 2009. Registration for
Round 2 has yet to open
[[Page 37899]]
with no date even tentatively scheduled. As a result, many providers
currently supplying durable medical equipment services for OWCP would
be precluded from participation.
This provision was added to afford OWCP with a measure of
reliability in durable medical equipment suppliers while avoiding the
use of scarce program resources to police all such providers. The
comment is well taken as there are two processes relating to DMEPOS
under Medicare. Relevant to this regulation is Medicare's DMEPOS
Accreditation Process. This process was established as a result of the
Medicare Modernization Act to implement quality standards for suppliers
of, among other things, durable medical equipment. The accreditation
process is currently open and providers are still being enrolled. This
section has therefore been modified to require registration under
Medicare's DMEPOS Accreditation Process rather than Medicare's
Competitive Bidding Program. This should address the concerns of the
commenter.
Section 10.321
One attorney suggested that the language should be changed to
require OWCP to provide notice to the claimant of the right to object
to the referee selection at the time the referee notice is sent and
that OWCP bears the burden of showing that it complied with the strict
rotational system. The only proposed change to the existing rule was to
add the ``impartial'' nomenclature that the Employees' Compensation
Appeals Board (ECAB) uses in its appeal decisions for the third tie-
breaking (referee) physician. This section explains under what
circumstances OWCP will appoint a third physician to make an
examination. There is no requirement in the statute, ECAB case law or
OWCP procedure for such notices or rotational requirements or for
placing such strict obligations on OWCP by regulation. In addition,
OWCP needs to retain some flexibility as to how it selects its
impartial specialists, as some esoteric specialties may require more
flexibility in scheduling. Consequently, the language in this section
has not been modified.
Section 10.401
Two labor organizations commented that the proposed language does
not clearly establish that USPS employees who use leave during the
first three days of temporary disability should have their leave
reinstated if the injury causes permanent disability or if the pay loss
continues for more than 14 calendar days. This explanation is
specifically provided in Sec. 10.200(c). For clarity, a reference to
Sec. 10.200(c) and to 5 U.S.C. 8117(b) has been added.
Section 10.421
One agency commented that this section omitted a discussion of U.S.
Department of Veterans Affairs benefits. The proposed language contains
nothing novel and no specific reference to VA benefits appeared in
either the 1988 or 1999 final rules. Furthermore, the program's
procedures have long contained instructions on determining when VA
payments constitute a prohibited dual benefit under the statute, and
OWCP is not aware of any problems which have arisen with respect to
these instructions. Therefore, the program does not believe that it is
necessary to address it by regulation.
Section 10.500
Eight attorneys noted that the additional sentence added to
paragraph (a) of this section ignores and appears to undercut a very
necessary procedure that has been set up to protect the employee's
vested interest in continuation of wage-loss benefits absent being
afforded due process rights prior to any reduction or elimination of
benefits.
Two labor organizations argued that the change to ``appropriate
work'' in paragraph (b) of this section recasts the discussion into the
context of loss of wage earning capacity determinations and that the
term ``appropriate'' lacks a meaningful statutory or regulatory history
and questioned the cross reference in Sec. 10.515.
OWCP first notes that Sec. 10.500, as evidenced by the question
proposed in the title, is meant to provide the very basic rules on
receipt of benefits and rules regarding return to work and its effect
on compensation. The changes made to this section were to clarify these
situations and to provide information to claimants regarding their
obligation to perform light duty when the evidence establishes that
work is available within the employee's restrictions. These comments,
however, indicate an apparent misunderstanding of the basic intent of
Sec. 10.500. Accordingly, the section has been clarified by splitting
up paragraphs (a) and (b) in the proposed rule to paragraphs (a)-(d) in
this section. While these sections do not provide any new information
or communicate a change in interpretation of current law, OWCP believes
that the purpose and intent of the rule will be demonstrated more
clearly. Furthermore, in any situation where benefits are reduced or
denied under this section, OWCP will issue a decision that contains
findings of fact and a statement of reasons. Where appropriate, such as
in cases of ongoing continuous entitlement, OWCP will also provide the
claimant notice of its proposed action as well as an opportunity to
respond prior to issuing a decision based on this regulation. All such
decisions will be accompanied by an explanation of the claimant's right
to further administrative review including appeal to ECAB. These
actions will address the due process concerns expressed by these
organizations. Finally, the cross-reference that was questioned by the
labor organizations was removed from Sec. 10.515 as that was no longer
needed.
Section 10.509
The proposed new Sec. 10.509 was modified by splitting this
section into two sections, Sec. 10.509 and Sec. 10.510. Section
10.509 now covers only situations involving the effect of downsizing of
a light duty position on compensation. This section elicited comment
from eight attorneys who disputed the additional phrase requiring the
employing agency to state, in writing, that no other employment is
available as being simply conclusory in nature. However, this
clarifying phrase does not impact the section's basic premise that
employees who have a wage-earning capacity determination in place do
not sustain a compensable recurrence of disability when they lose their
light duty positions pursuant to reductions-in-force and merely
codifies existing procedures. As such, no change has been made to this
section.
Another commenter took issue with the use of ``other forms of
downsizing'', arguing that this allows the agency to evade
responsibilities under any collective bargaining agreement and
established RIF law. As this is a personnel matter outside the scope of
these FECA regulations, no change is necessary to the regulations as a
result of this comment.
Section 10.510
This section elicited comments from sixty-nine individuals, all of
which were form letters, as well as comments from nine attorneys and
two labor organizations. All comments expressed concern that the change
in language would undercut the job suitability determination process.
The purpose of the section, as noted in the preamble to the proposed
rule, was to clarify when a light duty job may form the basis of a loss
of wage-earning capacity determination, and does not involve
determinations regarding job suitability under 5 U.S.C. 8106(c). One of
the
[[Page 37900]]
fundamental bases for a loss of wage-earning capacity determination is
that the position must fairly and reasonably represent an employee's
ability to earn wages. As that basic factor was not explicitly
expressed in this section, this language has been added.
Section 10.511
Two labor organizations recommended the abbreviation ``i.e.'' be
changed to ``e.g.'' because surgery is only one of multiple reasons
that could support payment of wage-loss compensation for a limited
period of disability in the presence of a loss-of-wage-earning-capacity
determination. While no modification is strictly required, using the
term ``such as'' will address the concerns expressed by the commenters
and add clarity through the use of plain language.
Section 10.519
Two labor organizations noted that, although the reference to OWCP
nurses was removed from Sec. 10.518, it was not removed from this
section. The reference to registered nurses was deleted from Sec.
10.518 as ECAB found that nurse services were not to be considered
vocational rehabilitation for the purposes of imposing sanctions
pursuant to 5 U.S.C. 8113 (b). While OWCP will not apply such sanctions
to non-cooperation with OWCP registered nurses, the reference remains
in Sec. 10.519(a) to allow for flexibility in coordinating the
services of both registered nurses and vocational rehabilitation
counselors in OWCP's return to work efforts for injured workers.
Section 10.521
The proposed rule added this section to explain the ramifications
of electing to receive retirement benefits instead of FECA benefits.
While not averse to referencing existing procedure in the regulatory
language, two labor organizations objected to the addition of the
phrase ``where OWCP is attempting to otherwise place that employee in a
suitable job[.]'' The commenters argued that such language was
potentially so broad as to cover any effort, including those
inconsistent with law, regulation or procedure, and such a regulation
would be punitive toward injured workers electing retirement benefits
in order to receive schedule award payments. OWCP does not believe a
change in this section is warranted, as the requirements for
determining a loss of wage earning capacity are well established. A
loss of wage earning capacity determination does not constitute a
sanction; this section will have no impact on the concurrent receipt of
OPM retirement benefits and a schedule award that is plainly
permissible under the statute.
Section 10.607
Ninety commenters objected to the change to Sec. 10.607, which
modified the deadline for seeking reconsideration with OWCP on a denial
of benefits from the requirement that the request ``be sent within one
year'' to being ``received'' by OWCP within one year and requiring the
request itself to be dated. Most of these comments were form letters.
One commenter questioned whether the date would be the date received by
OWCP or the date the letter is scanned into OWCP's electronic claim
file system. Two commenters noted that this would create separate rules
on deadlines for filing a request for reconsideration and a request for
hearing with OWCP's Branch of Hearings and Review, in that the current
rule in each instance bases the deadlines on the postmark on the
envelope. The form letter comments suggested that this will increase
the cost of filing reconsiderations by requiring claimants to send such
requests by certified mail or facsimile in order to clearly know when
the request has been received.
OWCP notes that the prior regulation, which allowed for the date a
request for reconsideration was sent to be documented by postmark,
predated the current electronic file system (iFECs). Due to the large
volume of mail that is received and scanned into this file system, it
is not feasible or efficient to keep envelopes for all mail scanned
prior to determining whether such mail is a request for
reconsideration, making it impossible to determine the date such a
request was sent to OWCP. This anomaly led to situations where dated
requests for reconsideration were received well past the one year
deadline, but were required to be treated as timely under the prior
regulations. Such a problem is not inherent in requests for oral
hearings, as hearing requests are mailed directly to the Branch of
Hearings and Review. Therefore no change was necessary to that
procedure. OWCP believes that this difference in procedure will be
clearly explained in the appeal rights notice to avoid confusion.
Furthermore, by 2012, OWCP will implement a free, Web-based system
(E-COMP) that will allow claimants and representatives to directly
upload documents to the electronic case file, minimizing both the cost
and documentation questions noted by the commenters. Such electronic
submissions should come at no cost to either the claimant or a
representative and will provide instant acknowledgment as to when a
document was received by OWCP.
Finally, OWCP notes that the one year period for requesting
reconsideration is extremely generous compared to other benefit appeals
systems. As noted in the preamble to the notice of proposed rulemaking,
rather than cutting back the time to file such a request (to either 180
days, as with the ECAB, or 65 days, as with the Social Security
Administration), OWCP simply chose to provide a solution that would
allow OWCP to more easily document when the request was timely. The
regulation provides more than ample time to both claimants and
representatives to gather new evidence and submit a request for
reconsideration. Accordingly, no change has been made to this section
as a result of these comments.
Sections 10.616, 10.617 & 10.622
The notice of proposed rule making drew six comments, all from
attorneys, in regards to Sec. Sec. 10.616, 10.617 and 10.622. Although
these sections address different issues, the comments all involved
requests for additional flexibility in the scheduling of an oral
hearing. One commenter specifically requested that the regulation be
changed to require a hearing representative to consult with a claimant
or representative prior to scheduling any hearing to arrange a mutually
convenient time and place to hold the hearing. The remaining commenters
simply asked that there be some coordination with the representative to
better accommodate hearing calendars.
Due to the volume of hearing requests and limited resources
available to conduct those hearings, OWCP is not able to grant the
large degree of consultation and latitude in the scheduling or
postponements of hearings requested by the commenters. However, the
increased use of teleconferences and other technology in hearings
affords OWCP some flexibility in scheduling that did not exist
previously. Accordingly, OWCP has redrafted Sec. 10.622 to provide
greater flexibility while still maintaining OWCP's discretion in how
and when these hearings are conducted. Specifically, OWCP added
language allowing rescheduling within a monthly docket where a claimant
or the representative has a prior unavoidable scheduling conflict and
extended the previously existing language in paragraph (d) to include
representatives as well.
[[Page 37901]]
Section 10.626
One labor organization stated in reference to Sec. 10.626 that
OWCP should consider adding language that states that OWCP will follow
decisions of the Employees' Compensations Appeals Board based on the
unions reading of a FECA circular from 1990. OWCP notes however that
this section deals solely with the jurisdiction over a claim while that
claim is appealed to ECAB. OWCP notes that part 0 of the Federal (FECA)
Procedure Manual clearly states that the Employees' Compensation
Appeals Board is an independent body that has jurisdiction to determine
appeals from denials of FECA benefits. Federal (FECA) Procedure Manual,
part 0-0100-3.
Section 10.700
An attorney commented that this section should include a mandatory
requirement that copies of all documents in the case file, including e-
mails, be automatically mailed to the claimant as well as the
claimant's representative. OWCP notes that such a requirement is
unnecessary, as the Privacy Act allows a claimant to request one free
copy of all such documents and to sign a waiver allowing any
representative to view those documents or receive a copy upon request.
Furthermore, while representatives are frequently copied on
correspondence to claimants, certain correspondence (such as the CA-
1032) remains the direct responsibility of the claimant to complete and
submit. For this reason, and based on program experience, OWCP will not
impose the regulatory requirement suggested by this commenter and the
regulation remains unchanged.
Sections 10.702 & 10.703
Two hundred forty-three of the comments, most of which were form
letters, disagreed with the specific prohibition on contingency fees
noted in these sections. One commenter strongly supported the ban on
contingency fees as she believed that current fee application
requirements compelled accountability on the part of the
representative. Language specifically banning contingency fees was
omitted during the last regulatory update, as the requirements for the
fee application were believed to make the additional language
redundant. Notwithstanding the regulation's explicit reference to
hourly rates, the removal of this language left some with the
impression that contingency fees were permissible and that the ban on
contingency arrangements had been removed. ECAB precedent has stated
that FECA does not allow for the payment of contingency fees, and the
current regulations clearly contemplate the use of an hourly rate in
determining representatives' fees. Furthermore, ECAB, in its recently
published final rule, noted that no contract for a stipulated fee or on
a contingent basis will be approved by ECAB. Federal Register cite. As
5 U.S.C. 8127 applies to representative fees before both ECAB and OWCP,
OWCP will continue to conform its position on contingency fees with
that of ECAB's. Consequently, no change has been made to this section
as a result of these comments.
Section 10.730
This section was amended to restore the statutory language
applicable to coverage of claims involving Peace Corps volunteers. The
use of ``deemed proximately caused'' mirrors the language in 5 U.S.C.
8142(c)(3). One attorney noted that the language of this section
reverses the statutory burden of proof for Peace Corps Volunteers by
adding additional requirements of proof in paragraph (b) and (c) to
those that are required in 5 U.S.C. 8142(c)(3). The language to which
the attorney took exception was not the amended language, but the
general statutory requirement that a volunteer must sustain either an
occupational disease or illness or a traumatic injury in order for FECA
coverage to apply. As such, no change has been made to this section as
a result of these comments.
Section 10.812
One attorney commented that OWCP seldom sends a notice explaining
appeal rights to the medical provider of reduced or denied fees and
does not send notice to the claimant of a reduction or denial of a
medical fee. This occasionally results in a claimant being sued years
after the bill was denied or reduced.
The existing rule was unchanged in the notice of proposed
rulemaking. Notification of payment, denial of payment or fee reduction
of a service is supplied in writing to the provider requesting payment.
A claimant may review the bills submitted in his/her case and
information regarding the amount billed, paid and the reason for any
denial is readily available on-line. Although Sec. 10.813 of this part
clearly states that claimants may not be billed for the difference when
a fee is reduced, OWCP agrees that claimants may not realize that they
are not responsible for medical charges exceeding the maximum allowed
in the OWCP fee schedule. While no change has been made to this
section, language regarding this concern has been added to the Web site
and included in the acceptance letter sent to a claimant.
II. Administrative Requirements for the Proposed Rulemaking
Executive Orders 12866 and 13563
Executive Order 12866 directs agencies to assess all costs and
benefits of available regulatory alternatives and, if regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public health and safety
effects; distributive impacts; and equity). Executive Order 13563 is
supplemental to and reaffirms the principles, structures, and
definitions governing regulatory review as established in Executive
Order 12866.
This rule constitutes a ``significant'' rule within the meaning of
Executive Order 12866 in that any executive agency could be required to
participate in the development of claims for benefits under this
regulatory action. OWCP believes, however, that as this rule merely
updates existing regulations, this rule will not have a significant
economic impact on the economy, or any person or organization subject
to the proposed changes. OWCP has projected that the addition of the
skin as an organ under the schedule award provision as well as the
revision of the part 25 compensation for non-citizen non-resident
employees will result in additional expenditures of $10,893,434 over
ten years.
This projection is based on a very limited amount of data and a
single significant event could result in substantially higher than
projected expenditures. This has been reviewed by the Office of
Management and Budget for consistency with the President's priorities
and the principles set forth in Executive Order 12866.
Regulatory Flexibility Act of 1980
This rule has been reviewed in accordance with the Regulatory
Flexibility Act of 1980, as amended by the Small Business Regulatory
Enforcement Fairness Act of 1996, 5 U.S.C. 601-612. OWCP has concluded
that the rule does not involve regulatory and informational
requirements regarding businesses, organizations, and governmental
jurisdictions subject to regulation.
Paperwork Reduction Act (PRA)
This rule contains information collection requirements subject to
the Paperwork Reduction Act (PRA) of 1995, 44 U.S.C. 3501, et seq. The
[[Page 37902]]
requirements set out in this rule were both submitted to and approved
by the OMB under the OMB Control Numbers 1240-0001, 1240-0007, 1240-
0008, 1240-0009, 1240-0012, 1240-0013, 1240-0015, 1240-0016, 1240-0017,
1240-0018, 1240-0019, 1240-0022, 1240-0044, 1240-0045, 1240-0046, 1240-
0047, 1240-0049, 1240-0050 and 1240-0051.
The National Environmental Policy Act of 1969
OWCP certifies that this rule has been assessed in accordance with
the requirements of the National Environmental Policy Act of 1969, 42
U.S.C. 4321 et seq. (NEPA). OWCP concludes that NEPA requirements do
not apply to this rulemaking because this rule includes no provisions
impacting the maintenance, preservation, or enhancement of a healthful
environment.
Federal Regulations and Policies on Families
OWCP has reviewed this rule in accordance with the requirements of
section 654 of the Treasury and General Government Appropriations Act
of 1999, 5 U.S.C. 601 note. This rule was not found to have a potential
negative effect on family well-being as it is defined thereunder.
Executive Order 13045: Protection of Children From Environmental Health
Risks and Safety Risks
OWCP certifies that this rule has been assessed regarding
environmental health risks and safety risks that may disproportionately
affect children. This rule was not found to have a potential negative
effect on the health or safety of children.
Unfunded Mandates Reform Act of 1995 and Executive Order 13132
OWCP has reviewed this rule in accordance with the requirements of
Executive Order 13132, 64 FR 43225 (Aug. 10, 1999), and the Unfunded
Mandates Reform Act of 1995, 2 U.S.C. 1501 et seq., and has found no
potential or substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. As there is no Federal mandate contained herein that could
result in increased expenditures by State, local, or Tribal governments
or by the private sector, OWCP has not prepared a budgetary impact
statement.
Executive Order 13175: Consultation and Coordination With Indian Tribal
Governments
OWCP has reviewed this rule in accordance with Executive Order
13175, 65 FR 67249 (Nov. 9, 2000), and has determined that it does not
have ``Tribal implications.'' The rule does not ``have substantial
direct effects on one or more Indian Tribes, on the relationship
between the Federal government and Indian Tribes, or on the
distribution of power and responsibilities between the Federal
government and Indian Tribes.''
Executive Order 12630: Governmental Actions and Interference With
Constitutionally Protected Property Rights
OWCP has reviewed this rule in accordance with Executive Order
12630, 53 FR 8859 (Mar. 15, 1988), and has determined that it does not
contain any ``policies that have takings implications'' in regard to
the ``licensing, permitting, or other condition requirements or
limitations on private property use, or that require dedications or
exactions from owners of private property.''
Executive Order 13211: Energy Supply, Distribution, or Use
OWCP has reviewed this rule and has determined that the provisions
of Executive Order 13211, 66 FR 28355 (May 18, 2001), are not
applicable as there are no direct or implied effects on energy supply,
distribution, or use.
The Privacy Act of 1974, 5 U.S.C. 552a, as Amended
Claims filed under these regulations are subject to the current
Privacy Act System of Records, DOL/GOVT-1, Office of Workers'
Compensation Programs, Federal Employees' Compensation Act File, 67 FR
16826 (April 8, 2002).
Clarity of This Regulation
Executive Order 12866, 58 FR 51735 (September 30, 1993), and the
President's memorandum of June 1, 1998, require each agency to write
all rules in plain language. OWCP invited comments on how to make the
proposed rule easier to understand, and has incorporated plain language
into the rule.
List of Subjects in 20 CFR Parts 1, 10, and 25
Administrative practice and procedure, Claims, Government
Employees, Labor, Workers' Compensation.
For reasons set forth in the preamble, the Office of Workers'
Compensation Programs, Department of Labor, amends 20 CFR chapter I as
follows:
0
1. Part 1 is revised to read as follows:
PART 1--PERFORMANCE OF FUNCTIONS
Sec.
1.1 Under what authority does the Office of Workers' Compensation
Programs operate?
1.2 What functions are assigned to OWCP?
1.3 What rules are contained in this chapter?
1.4 Where are other rules concerning OWCP functions found?
1.5 When was the former Bureau of Employees' Compensation abolished?
1.6 How were many of OWCP's current functions administered in the
past?
Authority: 5 U.S.C. 301, 8145 and 8149 (Reorganization Plan No.
6 of 1950, 15 FR 3174, 3 CFR, 1949-1953 Comp., p. 1004, 64 Stat.
1263); 42 U.S.C. 7384d and 7385s-10; E.O. 13179, 65 FR 77487, 3 CFR,
2000 Comp., p. 321; Secretary of Labor's Order No. 13-71, 36 FR
8155; Employment Standards Order No. 2-74, 39 FR 34722; Secretary of
Labor's Order No. 10-2009, 74 FR 218.
Sec. 1.1 Under what authority does the Office of Workers'
Compensation Programs operate?
(a) The Assistant Secretary of Labor for Employment Standards, by
authority vested in him by the Secretary of Labor in Secretary's Order
No. 13-71 (36 FR 8755), established in the Employment Standards
Administration (ESA) an Office of Workers' Compensation Programs (OWCP)
by Employment Standards Order No. 2-74 (39 FR 34722). The Assistant
Secretary subsequently designated as the head thereof a Director who,
under the general supervision of the Assistant Secretary, administered
the programs assigned to OWCP by the Assistant Secretary.
(b) Effective November 8, 2009, ESA was dissolved into its four
component parts, including OWCP. Secretary of Labor's Order 10-2009 (74
FR 58834) cancelled or modified all prior orders and directives
referencing ESA, devolved certain authorities and responsibilities of
ESA to OWCP, and delegated authority to the Director, OWCP, to
administer the programs now assigned directly to OWCP.
Sec. 1.2 What functions are assigned to OWCP?
The Secretary of Labor has delegated authority and assigned
responsibility to the Director of OWCP for the Department of Labor's
programs under the following statutes:
(a) The Federal Employees' Compensation Act, as amended and
extended (5 U.S.C. 8101 et seq.), except
[[Page 37903]]
5 U.S.C. 8149 as it pertains to the Employees' Compensation Appeals
Board.
(b) The War Hazards Compensation Act, as amended (42 U.S.C. 1701 et
seq.).
(c) The War Claims Act of 1948, as amended (50 U.S.C. App. 2003 et
seq.).
(d) The Energy Employees Occupational Illness Compensation Program
Act of 2000, as amended (42 U.S.C. 7384 et seq.), except 42 U.S.C.
7385s-15 as it pertains to the Office of the Ombudsman, and activities,
pursuant to Executive Order 13179 (``Providing Compensation to
America's Nuclear Weapons Workers'') of December 7, 2000, assigned to
the Secretary of Health and Human Services, the Secretary of Energy and
the Attorney General.
(e) The Longshore and Harbor Workers' Compensation Act, as amended
and extended (33 U.S.C. 901 et seq.), except: 33 U.S.C. 919(d) with
respect to administrative law judges in the Office of Administrative
Law Judges; 33 U.S.C. 921(b) as it pertains to the Benefits Review
Board; and activities, pursuant to 33 U.S.C. 941, assigned to the
Assistant Secretary of Labor for Occupational Safety and Health.
(f) The Black Lung Benefits Act, as amended (30 U.S.C. 901 et
seq.)., including 26 U.S.C. 9501, except: 33 U.S.C. 919(d) as
incorporated by 30 U.S.C. 932(a), with respect to administrative law
judges in the Office of Administrative Law Judges; and 33 U.S.C. 921(b)
as incorporated by 30 U.S.C. 932(a), as it applies to the Benefits
Review Board.
Sec. 1.3 What rules are contained in this chapter?
The rules in this chapter are those governing the OWCP functions
under the Federal Employees' Compensation Act, the War Hazards
Compensation Act, the War Claims Act and the Energy Employees
Occupational Illness Compensation Program Act of 2000.
Sec. 1.4 Where are other rules concerning OWCP functions found?
(a) The rules of OWCP governing its functions under the Longshore
and Harbor Workers' Compensation Act and its extensions are set forth
in subchapter A of chapter VI of this title.
(b) The rules of OWCP governing its functions under the Black Lung
Benefits Act program are set forth in subchapter B of chapter VI of
this title.
(c) The rules and regulations of the Employees' Compensation
Appeals Board are set forth in chapter IV of this title.
(d) The rules and regulations of the Benefits Review Board are set
forth in Chapter VII of this title.
Sec. 1.5 When was the former Bureau of Employees' Compensation
abolished?
By Secretary of Labor's Order issued September 23, 1974 (39 FR
34723), issued concurrently with Employment Standards Order 2-74 (39 FR
34722), the Secretary revoked the prior Secretary's Order No. 18-67 (32
FR 12979), which had delegated authority and assigned responsibility
for the various workers' compensation programs enumerated in Sec. 1.2,
except the Black Lung Benefits Program and the Energy Employees
Occupational Illness Compensation Program not then in existence, to the
Director of the former Bureau of Employees' Compensation.
Sec. 1.6 How were many of OWCP's current functions administered in
the past?
(a) Administration of the Federal Employees' Compensation Act and
the Longshore and Harbor Workers' Compensation Act was initially vested
in an independent establishment known as the U.S. Employees'
Compensation Commission. By Reorganization Plan No. 2 of 1946 (3 CFR,
1943-1949 Comp., p. 1064; 60 Stat. 1095, effective July 16, 1946), the
Commission was abolished and its functions were transferred to the
Federal Security Agency to be performed by a newly created Bureau of
Employees' Compensation within such Agency. By Reorganization Plan No.
19 of 1950 (15 FR 3178, 3 CFR, 1949-1954 Comp., page 1010, 64 Stat.
1271), said Bureau was transferred to the Department of Labor (DOL),
and the authority formerly vested in the Administrator, Federal
Security Agency, was vested in the Secretary of Labor. By
Reorganization Plan No. 6 of 1950 (15 FR 3174, 3 CFR, 1949-1953 Comp.,
page 1004, 64 Stat. 1263), the Secretary of Labor was authorized to
make from time to time such provisions as he shall deem appropriate,
authorizing the performance of any of his functions by any other
officer, agency, or employee of the DOL.
(b) In 1972, two separate organizational units were established
within the Bureau: an Office of Workmen's Compensation Programs (37 FR
20533) and an Office of Federal Employees' Compensation (37 FR 22979).
In 1974, these two units were abolished and one organizational unit,
the Office of Workers' Compensation Programs, was established in lieu
of the Bureau of Employees' Compensation (39 FR 34722).
0
2. Part 10 is revised to read as follows:
PART 10--CLAIMS FOR COMPENSATION UNDER THE FEDERAL EMPLOYEES'
COMPENSATOIN ACT, AS AMENDED
Subpart A--General Provisions
Sec.
Introduction
10.0 What are the provisions of the FECA, in general?
10.1 What rules govern the administration of the FECA and this
chapter?
10.2 What do these regulations contain?
10.3 Have the collection of information requirements of this part
been approved by the Office of Management and Budget (OMB)?
Definitions and Forms
10.5 What definitions apply to the regulations in this subchapter?
10.6 What special statutory definitions apply to dependents and
survivors?
10.7 What forms are needed to process claims under the FECA?
Information in Program Records
10.10 Are all documents relating to claims filed under the FECA
considered confidential?
10.11 Who maintains custody and control of FECA records?
10.12 How may a FECA claimant or beneficiary obtain copies of
protected records?
10.13 What process is used by a person who wants to correct FECA-
related documents?
Rights and Penalties
10.15 May compensation rights be waived?
10.16 What criminal and civil penalties may be imposed in connection
with a claim under the FECA?
10.17 Is a beneficiary who defrauds the Government in connection
with a claim for benefits still entitled to those benefits?
10.18 Can a beneficiary who is incarcerated based on a felony
conviction still receive benefits?
Subpart B--Filing Notices and Claims; Submitting Evidence
Notices and Claims for Injury, Disease, and Death--Employee or
Survivor's Actions
10.100 How and when is a notice of traumatic injury filed?
10.101 How and when is a notice of occupational disease filed?
10.102 How and when is a claim for wage loss compensation filed?
10.103 How and when is a claim for permanent impairment filed?
10.104 How and when is a claim for recurrence filed?
10.105 How and when is a notice of death and claim for benefits
filed?
Notices and Claims for Injury, Disease, and Death--Employer's Actions
10.110 What should the employer do when an employee files a notice
of traumatic injury or occupational disease?
[[Page 37904]]
10.111 What should the employer do when an employee files an initial
claim for compensation due to disability or permanent impairment?
10.112 What should the employer do when an employee files a claim
for continuing compensation due to disability?
10.113 What should the employer do when an employee dies from a
work-related injury or disease?
Evidence and Burden of Proof
10.115 What evidence is needed to establish a claim?
10.116 What additional evidence is needed in cases based on
occupational disease?
10.117 What happens if, in any claim, the employer contests any of
the facts as stated by the claimant?
10.118 Does the employer participate in the claims process in any
other way?
10.119 What action will OWCP take with respect to information
submitted by the employer?
10.120 May a claimant submit additional evidence?
10.121 What happens if OWCP needs more evidence from the claimant?
Decisions on Entitlement to Benefits
10.125 How does OWCP determine entitlement to benefits?
10.126 What does the decision contain?
10.127 To whom is the decision sent?
Subpart C--Continuation of Pay
10.200 What is continuation of pay?
Eligibility for COP
10.205 What conditions must be met to receive COP?
10.206 May an employee who uses leave after an injury later decide
to use COP instead?
10.207 May an employee who returns to work, then stops work again
due to the effects of the injury, receive COP?
Responsibilities
10.210 What are the employee's responsibilities in COP cases?
10.211 What are the employer's responsibilities in COP cases?
Calculation of COP
10.215 How does OWCP compute the number of days of COP used?
10.216 How is the pay rate for COP calculated?
10.217 Is COP charged if the employee continues to work, but in a
different job that pays less?
Controversion and Termination of COP
10.220 When is an employer not required to pay COP?
10.221 How is a claim for COP controverted?
10.222 When may an employer terminate COP which has already begun?
10.223 Are there other circumstances under which OWCP will not
authorize payment of COP?
10.224 What happens if OWCP finds that the employee is not entitled
to COP after it has been paid?
Subpart D--Medical and Related Benefits
Emergency Medical Care
10.300 What are the basic rules for authorizing emergency medical
care?
10.301 May the physician designated on Form CA-16 refer the employee
to another medical specialist or medical facility?
10.302 Should the employer authorize medical care if he or she
doubts that the injury occurred, or that it is work-related?
10.303 Should the employer use a Form CA-16 to authorize medical
testing when an employee is exposed to a workplace hazard just once?
10.304 Are there any exceptions to these procedures for obtaining
medical care?
Medical Treatment and Related Issues
10.310 What are the basic rules for obtaining medical care?
10.311 What are the special rules for the services of chiropractors?
10.312 What are the special rules for the services of clinical
psychologists?
10.313 Will OWCP pay for preventive treatment?
10.314 Will OWCP pay for the services of an attendant?
10.315 Will OWCP pay for transportation to obtain medical treatment?
10.316 After selecting a treating physician, may an employee choose
to be treated by another physician instead?
Directed Medical Examinations
10.320 Can OWCP require an employee to be examined by another
physician?
10.321 What happens if the opinion of the physician selected by OWCP
differs from the opinion of the physician selected by the employee?
10.322 Who pays for second opinion and referee examinations?
10.323 What are the penalties for failing to report for or
obstructing a second opinion or referee examination?
10.324 May an employer require an employee to undergo a physical
examination in connection with a work-related injury?
Medical Reports
10.330 What are the requirements for medical reports?
10.331 How and when should the medical report be submitted?
10.332 What additional medical information will OWCP require to
support continuing payment of benefits?
10.333 What additional medical information will OWCP require to
support a claim for a schedule award?
Medical Bills
10.335 How are medical bills submitted?
10.336 What are the time frames for submitting bills?
10.337 If an employee is only partially reimbursed for a medical
expense, must the provider refund the balance of the amount paid to
the employee?
Subpart E--Compensation and Related Benefits
Compensation for Disability and Impairment
10.400 What is total disability?
10.401 When and how is compensation for total disability paid?
10.402 What is partial disability?
10.403 When and how is compensation for partial disability paid?
10.404 When and how is compensation for a schedule impairment paid?
10.405 Who is considered a dependent in a claim based on disability
or impairment?
10.406 What are the maximum and minimum rates of compensation in
disability cases?
Compensation for Death
10.410 Who is entitled to compensation in case of death, and what
are the rates of compensation payable in death cases?
10.411 What are the maximum and minimum rates of compensation in
death cases?
10.412 Will OWCP pay the costs of burial and transportation of the
remains?
10.413 May a schedule award be paid after an employee's death?
10.414 What reports of dependents are needed in death cases?
10.415 What must a beneficiary do if the number of beneficiaries
decreases?
10.416 How does a change in the number of beneficiaries affect the
amount of compensation paid to the other beneficiaries?
10.417 What reports are needed when compensation payments continue
for children over age 18?
Adjustments to Compensation
10.420 How are cost-of-living adjustments applied?
10.421 May a beneficiary receive other kinds of payments from the
Federal Government concurrently with compensation?
10.422 May compensation payments be issued in a lump sum?
10.423 May compensation payments be assigned to, or attached by,
creditors?
10.424 May someone other than the beneficiary be designated to
receive compensation payments?
10.425 May compensation be claimed for periods of restorable leave?
Overpayments
10.430 How does OWCP notify an individual of a payment made?
10.431 What does OWCP do when an overpayment is identified?
10.432 How can an individual present evidence to OWCP in response to
a preliminary notice of an overpayment?
10.433 Under what circumstances can OWCP waive recovery of an
overpayment?
10.434 If OWCP finds that the recipient of an overpayment was not at
fault, what criteria are used to decide whether to waive recovery of
it?
10.435 Is an individual responsible for an overpayment that resulted
from an error made by OWCP or another Government agency?
[[Page 37905]]
10.436 Under what circumstances would recovery of an overpayment
defeat the purpose of the FECA?
10.437 Under what circumstances would recovery of an overpayment be
against equity and good conscience?
10.438 Can OWCP require the individual who received the overpayment
to submit additional financial information?
10.439 What is addressed at a pre-recoupment hearing?
10.440 How does OWCP communicate its final decision concerning
recovery of an overpayment, and what appeal right accompanies it?
10.441 How are overpayments collected?
Subpart F--Continuing Benefits
Rules and Evidence
10.500 What are the basic rules governing continuing receipt of
compensation benefits and return to work?
10.501 What medical evidence is necessary to support continuing
receipt of compensation benefits?
10.502 How does OWCP evaluate evidence in support of continuing
receipt of compensation benefits?
10.503 Under what circumstances may OWCP reduce or terminate
compensation benefits?
Return to Work--Employer's Responsibilities
10.505 What actions must the employer take?
10.506 May the employer monitor the employee's medical care?
10.507 How should the employer make an offer of suitable work?
10.508 May relocation expenses be paid for an employee who would
need to move to accept an offer of reemployment?
10.509 If an employee's light duty job is eliminated due to
downsizing, what is the effect on compensation?
10.510 When may a light duty job form the basis of a loss of wage-
earning capacity determination?
10.511 How may a loss of wage-earning capacity determination be
modified?
Return to Work--Employee's Responsibilities
10.515 What actions must the employee take with respect to returning
to work?
10.516 How will an employee know if OWCP considers a job to be
suitable?
10.517 What are the penalties for refusing to accept a suitable job
offer?
10.518 Does OWCP provide services to help employees return to work?
10.519 What action will OWCP take if an employee refuses to undergo
vocational rehabilitation?
10.520 How does OWCP determine compensation after an employee
completes a vocational rehabilitation program?
10.521 If an employee elects to receive retirement benefits instead
of FECA benefits, what effect may such an election have on that
employee's entitlement to FECA compensation?
Reports of Earnings From Employment and Self-Employment
10.525 What information must the employee report?
10.526 Must the employee report volunteer activities?
10.527 Does OWCP verify reports of earnings?
10.528 What action will OWCP take if the employee fails to file a
report of activity indicating an ability to work?
10.529 What action will OWCP take if the employee files an
incomplete report?
Reports of Dependents
10.535 How are dependents defined, and what information must the
employee report?
10.536 What is the penalty for failing to submit a report of
dependents?
10.537 What reports are needed when compensation payments continue
for children over age 18?
Reduction and Termination of Compensation
10.540 When and how is compensation reduced or terminated?
10.541 What action will OWCP take after issuing written notice of
its intention to reduce or terminate compensation?
Subpart G--Appeals Process
10.600 How can final decisions of OWCP be reviewed?
Reconsiderations and Reviews by the Director
10.605 What is reconsideration?
10.606 How does a claimant request reconsideration?
10.607 What is the time limit for requesting reconsideration?
10.608 How does OWCP decide whether to grant or deny the request for
reconsideration?
10.609 How does OWCP decide whether new evidence requires
modification of the prior decision?
10.610 What is a review by the Director?
Hearings
10.615 What is a hearing?
10.616 How does a claimant obtain a hearing?
10.617 How is an oral hearing conducted?
10.618 How is a review of the written record conducted?
10.619 May subpoenas be issued for witnesses and documents?
10.620 Who pays the costs associated with subpoenas?
10.621 What is the employer's role when an oral hearing has been
requested?
10.622 May a claimant or representative withdraw a request for or
postpone a hearing?
Review by the Employees' Compensation Appeals Board (ECAB)
10.625 What kinds of decisions may be appealed?
10.626 Who has jurisdiction of cases on appeal to the ECAB?
Subpart H--Special Provisions
Representation
10.700 May a claimant designate a representative?
10.701 Who may serve as a representative?
10.702 How are fees for services paid?
10.703 How are fee applications approved?
10.704 What penalties apply to representatives who collect a fee
without approval?
Third Party Liability
10.705 When must an employee or other FECA beneficiary take action
against a third party?
10.706 How will a beneficiary know if OWCP or SOL has determined
that action against a third party is required?
10.707 What must a FECA beneficiary who is required to take action
against a third party do to satisfy the requirement that the claim
be ``prosecuted''?
10.708 Can a FECA beneficiary who refuses to comply with a request
to assign a claim to the United States or to prosecute the claim in
his or her own name be penalized?
10.709 What happens if a beneficiary directed by OWCP or SOL to take
action against a third party does not believe that a claim can be
successfully prosecuted at a reasonable cost?
10.710 Under what circumstances must a recovery of money or other
property in connection with an injury or death for which benefits
are payable under the FECA be reported to OWCP or SOL?
10.711 How is the amount of the recovery of the FECA beneficiary
determined?
10.712 How much of any settlement or judgment must be paid to the
United States?
10.713 How is a structured settlement (that is, a settlement
providing for receipt of funds over a specified period of time)
treated for purposes of reporting the gross recovery?
10.714 What amounts are included in the refundable disbursements?
10.715 Is a beneficiary required to pay interest on the amount of
the refund due to the United States?
10.716 If the required refund is not paid within 30 days of the
request for repayment, can it be collected from payments due under
the FECA?
10.717 Is a settlement or judgment received as a result of
allegations of medical malpractice in treating an injury covered by
the FECA a gross recovery that must be reported to OWCP or SOL?
10.718 Are payments to a beneficiary as a result of an insurance
policy which the beneficiary has purchased a gross recovery that
must be reported to OWCP or SOL?
10.719 If a settlement or judgment is received for more than one
wound or medical condition, can the refundable disbursements paid on
a single FECA claim be attributed to different conditions for
purposes of calculating the refund or credit owed to the United
States?
[[Page 37906]]
Federal Grand and Petit Jurors
10.725 When is a Federal grand or petit juror covered under the
FECA?
10.726 When does a juror's entitlement to disability compensation
begin?
10.727 What is the pay rate of jurors for compensation purposes?
Peace Corps Volunteers
10.730 What are the conditions of coverage for Peace Corps
volunteers and volunteer leaders injured while serving outside the
United States?
10.731 What is the pay rate of Peace Corps volunteers and volunteer
leaders for compensation purposes?
Non-Federal Law Enforcement Officers
10.735 When is a non-Federal law enforcement officer (LEO) covered
under the FECA?
10.736 What are the time limits for filing a LEO claim?
10.737 How is a LEO claim filed, and who can file a LEO claim?
10.738 Under what circumstances are benefits payable in LEO claims?
10.739 What kind of objective evidence of a potential Federal crime
must exist for coverage to be extended?
10.740 In what situations will OWCP automatically presume that a law
enforcement officer is covered by the FECA?
10.741 How are benefits calculated in LEO claims?
Subpart I--Information for Medical Providers
Medical Records and Bills
10.800 How do providers enroll with OWCP for authorizations and
billing?
10.801 How are medical bills to be submitted?
10.802 How should an employee prepare and submit requests for
reimbursement for medical expenses, transportation costs, loss of
wages, and incidental expenses?
10.803 What are the time limitations on OWCP's payment of bills?
Medical Fee Schedule
10.805 What services are covered by the OWCP fee schedule?
10.806 How are the maximum fees defined?
10.807 How are payments for particular services calculated?
10.808 Does the fee schedule apply to every kind of procedure?
10.809 How are payments for medicinal drugs determined?
10.810 How are payments for inpatient medical services determined?
10.811 When and how are fees reduced?
10.812 If OWCP reduces a fee, may a provider request reconsideration
of the reduction?
10.813 If OWCP reduces a fee, may a provider bill the claimant for
the balance?
Exclusion of Providers
10.815 What are the grounds for excluding a provider from payment
under the FECA?
10.816 What will cause OWCP to automatically exclude a physician or
other provider of medical services and supplies?
10.817 How are OWCP's exclusion procedures initiated?
10.818 How is a provider notified of OWCP's intent to exclude him or
her?
10.819 What requirements must the provider's answer and OWCP's
decision meet?
10.820 How can an excluded provider request a hearing?
10.821 How are hearings assigned and scheduled?
10.822 How are subpoenas or advisory opinions obtained?
10.823 How will the administrative law judge conduct the hearing and
issue the recommended decision?
10.824 How does the recommended decision become final?
10.825 What are the effects of exclusion?
10.826 How can an excluded provider be reinstated?
Subpart J--Death Gratuity
10.900 What is the death gratuity under this subpart?
10.901 Which employees are covered under this subpart?
10.902 Does every employee's death due to injuries incurred in
connection with his or her service with an Armed Force in a
contingency operation qualify for the death gratuity?
10.903 Is the death gratuity payment applicable retroactively?
10.904 Does a death as a result of occupational disease qualify for
payment of the death gratuity?
10.905 If an employee incurs a covered injury in connection with his
or her service with an Armed Force in a contingency operation but
does not die of the injury until years later, does the death qualify
for payment of the death gratuity?
10.906 What special statutory definitions apply to survivors under
this subpart?
10.907 What order of precedence will OWCP use to determine which
survivors are entitled to receive the death gratuity payment under
this subpart?
10.908 Can an employee designate alternate beneficiaries to receive
a portion of the death gratuity payment?
10.909 How does an employee designate a variation in the order or
percentage of gratuity payable to survivors and how does the
employee designate alternate beneficiaries?
10.910 What if a person entitled to a portion of the death gratuity
payment dies after the death of the covered employee but before
receiving his or her portion of the death gratuity?
10.911 How is the death gratuity payment process initiated?
10.912 What is required to establish a claim for the death gratuity
payment?
10.913 In what situations will OWCP consider that an employee
incurred injury in connection with his or her service with an Armed
Force in a contingency operation?
10.914 What are the responsibilities of the employing agency in the
death gratuity payment process?
10.915 What are the responsibilities of OWCP in the death gratuity
payment process?
10.916 How is the amount of the death gratuity calculated?
Authority: 5 U.S.C. 301, 8102a, 8103, 8145 and 8149; 31 U.S.C.
3716 and 3717; Reorganization Plan No. 6 of 1950, 15 FR 3174, 64
Stat. 1263; Secretary of Labor's Order No. 10-2009, 74 FR 218.
Subpart A--General Provisions
Introduction
Sec. 10.0 What are the provisions of the FECA, in general?
The Federal Employees' Compensation Act (FECA) as amended (5 U.S.C.
8101 et seq.) provides for the payment of workers' compensation
benefits to civilian officers and employees of all branches of the
Government of the United States. The regulations in this part describe
the rules for filing, processing, and paying claims for benefits under
the FECA. Proceedings under the FECA are non-adversarial in nature.
(a) The FECA has been amended and extended a number of times to
provide workers' compensation benefits to volunteers in the Civil Air
Patrol (5 U.S.C. 8141), members of the Reserve Officers' Training Corps
(5 U.S.C. 8140), Peace Corps Volunteers (5 U.S.C. 8142), Job Corps
enrollees and Volunteers in Service to America (5 U.S.C. 8143), members
of the National Teachers Corps (5 U.S.C. 8143a), certain student
employees (5 U.S.C. 5351 and 8144), certain law enforcement officers
not employed by the United States (5 U.S.C. 8191-8193), and various
other classes of persons who provide or have provided services to the
Government of the United States.
(b) The FECA provides for payment of several types of benefits,
including compensation for wage loss, schedule awards, medical and
related benefits, and vocational rehabilitation services for conditions
resulting from injuries sustained in performance of duty while in
service to the United States.
(c) The FECA also provides for payment of monetary compensation to
specified survivors of an employee whose death resulted from a work-
related injury and for payment of certain burial expenses subject to
the provisions of 5 U.S.C. 8134.
(d) All types of benefits and conditions of eligibility listed in
this section are subject to the provisions of the FECA and of this
part. This section shall not be construed to modify or
[[Page 37907]]
enlarge upon the provisions of the FECA.
Sec. 10.1 What rules govern the administration of the FECA and this
chapter?
In accordance with 5 U.S.C. 8145 and Secretary's Order 5-96, the
responsibility for administering the FECA, except for 5 U.S.C. 8149 as
it pertains to the Employees' Compensation Appeals Board, has been
delegated to the Director of the Office of Workers' Compensation
Programs (OWCP). Except as otherwise provided by law, the Director,
OWCP and his or her designees have the exclusive authority to
administer, interpret and enforce the provisions of the Act.
Sec. 10.2 What do these regulations contain?
This part 10 sets forth the regulations governing administration of
all claims filed under the FECA, except to the extent specified in
certain particular provisions. Its provisions are intended to assist
persons seeking compensation benefits under the FECA, as well as
personnel in the various Federal agencies and the Department of Labor
who process claims filed under the FECA or who perform administrative
functions with respect to the FECA. This part 10 applies to part 25 of
this chapter except as modified by part 25. The various subparts of
this part contain the following:
(a) Subpart A. The general statutory and administrative framework
for processing claims under the FECA. It contains a statement of
purpose and scope, together with definitions of terms, descriptions of
basic forms, information about the disclosure of OWCP records, and a
description of rights and penalties under the FECA, including
convictions for fraud.
(b) Subpart B. The rules for filing notices of injury and claims
for benefits under the FECA. It also addresses evidence and burden of
proof, as well as the process of making decisions concerning
eligibility for benefits.
(c) Subpart C. The rules governing claims for and payment of
continuation of pay.
(d) Subpart D. The rules governing emergency and routine medical
care, second opinion and referee medical examinations directed by OWCP,
and medical reports and records in general. It also addresses the kinds
of treatment which may be authorized and how medical bills are paid.
(e) Subpart E. The rules relating to the payment of monetary
compensation benefits for disability, impairment and death. It includes
the provisions for identifying and processing overpayments of
compensation.
(f) Subpart F. The rules governing the payment of continuing
compensation benefits. It includes provisions concerning the employee's
and the employer's responsibilities in returning the employee to work.
It also contains provisions governing reports of earnings and
dependents, recurrences, and reduction and termination of compensation
benefits.
(g) Subpart G. The rules governing the appeals of decisions under
the FECA. It includes provisions relating to hearings,
reconsiderations, and appeals before the Employees' Compensation
Appeals Board.
(h) Subpart H. The rules concerning legal representation and for
adjustment and recovery from a third party. It also contains provisions
relevant to three groups of employees whose status requires special
application of the provisions of the FECA: Federal grand and petit
jurors, Peace Corps volunteers, and non- Federal law enforcement
officers.
(i) Subpart I. Information for medical providers. It includes rules
for medical reports, medical bills, and the OWCP medical fee schedule,
as well as the provisions for exclusion of medical providers.
(j) Subpart J. Death Gratuity. The rules relating to the payment of
the death gratuity benefit under 5 U.S.C. 8102a.
Sec. 10.3 Have the collection of information requirements of this
part been approved by the Office of Management and Budget (OMB)?
The collection of information requirements in this part have been
approved by OMB and assigned OMB control numbers 1240-0001, 1240-0007,
1240-0008, 1240-0009, 1240-0012, 1240-0013, 1240-0015, 1240-0016, 1240-
0017, 1240-0018, 1240-0019, 1240-0022, 1240-0044, 1240-0045, 1240-0046,
1240-0047, 1240-0049, 1240-0050 and 1240-0051.
Definitions and Forms
Sec. 10.5 What definitions apply to the regulations in this
subchapter?
Certain words and phrases found in this part are defined in this
section or in the FECA. Some other words and phrases that are used only
in limited situations are defined in the later subparts of the
regulations in this subchapter.
(a) Benefits or Compensation in the regulations in this subchapter
means Compensation as defined by the FECA at 5 U.S.C. 8101(12), which
is the money OWCP pays to or on behalf of a beneficiary from the
Employees' Compensation Fund. The terms Benefits and Compensation
include payments for lost wages, loss of wage-earning capacity, and
permanent physical impairment. The terms Benefits and Compensation also
include the money paid to beneficiaries for an employee's death,
including both death benefits and any death gratuity benefit. These two
terms also include any other amounts paid out of the Employees'
Compensation Fund for such things as medical treatment, medical
examinations conducted at the request of OWCP as part of the claims
adjudication process, vocational rehabilitation services under 5 U.S.C.
8111, services of an attendant and funeral expenses under 5 U.S.C.
8134, but do not include continuation of pay as provided by 5 U.S.C.
8118.
(b) Beneficiary means an individual who is entitled to a benefit
under the FECA and this part.
(c) Claim means a written assertion of an individual's entitlement
to benefits under the FECA, submitted in a manner authorized by this
part.
(d) Claimant means an individual whose claim has been filed.
(e) Director means the Director of OWCP or a person designated to
carry out his or her functions.
(f) Disability means the incapacity, because of an employment
injury, to earn the wages the employee was receiving at the time of
injury. It may be partial or total.
(g) Earnings from employment or self-employment means:
(1) Gross earnings or wages before any deductions and includes the
value of subsistence, quarters, reimbursed expenses and any other goods
or services received in kind as remuneration; or
(2) A reasonable estimate of the cost to have someone else perform
the duties of an individual who accepts no remuneration. Neither lack
of profits, nor the characterization of the duties as a hobby, removes
an unremunerated individual's responsibility to report the estimated
cost to have someone else perform his or her duties.
(h) Employee means, but is not limited to, an individual who fits
within one of the following listed groups:
(1) A civil officer or employee in any branch of the Government of
the United States, including an officer or employee of an
instrumentality wholly owned by the United States pursuant to 5 U.S.C.
8101(1)(A);
(2) An individual rendering personal service to the United States
similar to the service of a civil officer or employee of the United
States, without pay or for nominal pay, when a statute authorizes
[[Page 37908]]
the acceptance or use of the service, or authorizes payment of travel
or other expenses of the individual pursuant to 5 U.S.C. 8101(1)(B);
(3) An individual, other than an independent contractor or an
individual employed by an independent contractor, employed on the
Menominee Indian Reservation in Wisconsin in operations conducted under
a statute relating to Tribal timber and logging operations on that
reservation pursuant to 5 U.S.C. 8101(1)(C);
(4) An individual appointed to a position on the office staff of a
former President under section 1(b) of the Act of August 25, 1958 (72
Stat. 838) pursuant to 5 U.S.C. 8101(1)(E); or
(5) An individual selected and serving as a Federal petit or grand
juror pursuant to 5 U.S.C. 8101(1)(F).
(i) Employer or Agency means any civil agency or instrumentality of
the United States Government, or any other organization, group or
institution employing an individual defined as an ``employee'' by this
section. These terms also refer to officers and employees of an
employer having responsibility for the supervision, direction or
control of employees of that employer as an ``immediate superior,'' and
to other employees designated by the employer to carry out the
functions vested in the employer under the FECA and this part,
including officers or employees delegated responsibility by an employer
for authorizing medical treatment for injured employees.
(j) Entitlement means entitlement to benefits as determined by OWCP
under the FECA and the procedures described in this part.
(k) FECA means the Federal Employees' Compensation Act, as amended.
(l) Hospital services means services and supplies provided by
hospitals within the scope of their practice as defined by State law.
(m) Impairment means any anatomic or functional abnormality or
loss. A permanent impairment is any such abnormality or loss after
maximum medical improvement has been achieved.
(n) Knowingly means with knowledge, consciously, willfully or
intentionally.
(o) Medical services means services and supplies provided by or
under the supervision of a physician. Reimbursable chiropractic
services are limited to physical examinations (and related laboratory
tests), x-rays performed to diagnose a subluxation of the spine and
treatment consisting of manual manipulation of the spine to correct a
subluxation.
(p) Medical support services means services, drugs, supplies and
appliances provided by a person other than a physician or hospital.
(q) Occupational disease or illness means a condition produced by
the work environment over a period longer than a single workday or
shift.
(r) OWCP means the Office of Workers' Compensation Programs.
(s) Pay rate for compensation purposes means the employee's pay, as
determined under 5 U.S.C. 8114, at the time of injury, the time
disability begins or the time compensable disability recurs if the
recurrence begins more than six months after the injured employee
resumes regular full-time employment with the United States, whichever
is greater, except as otherwise determined under 5 U.S.C. 8113 with
respect to any period.
(t) Physician means an individual defined as such in 5 U.S.C.
8101(2), except during the period for which his or her license to
practice medicine has been suspended or revoked by a State licensing or
regulatory authority.
(u) Qualified hospital means any hospital licensed as such under
State law which has not been excluded under the provisions of subpart I
of this part. Except as otherwise provided by regulation, a qualified
hospital shall be deemed to be designated or approved by OWCP.
(v) Qualified physician means any physician who has not been
excluded under the provisions of subpart I of this part. Except as
otherwise provided by regulation, a qualified physician shall be deemed
to be designated or approved by OWCP.
(w) Qualified provider of medical support services or supplies
means any person, other than a physician or a hospital, who provides
services, drugs, supplies and appliances for which OWCP makes payment,
who possesses any applicable licenses required under State law, and who
has not been excluded under the provisions of subpart I of this part.
(x) Recurrence of disability means an inability to work after an
employee has returned to work, caused by a spontaneous change in a
medical condition which had resulted from a previous injury or illness
without an intervening injury or new exposure to the work environment
that caused the illness. This term also means an inability to work that
takes place when a light-duty assignment made specifically to
accommodate an employee's physical limitations due to his or her work-
related injury or illness is withdrawn or when the physical
requirements of such an assignment are altered so that they exceed his
or her established physical limitations. A recurrence of disability
does not apply when a light-duty assignment is withdrawn for reasons of
misconduct, non-performance of job duties or other downsizing or where
a loss of wage-earning capacity determination as provided by 5 U.S.C.
8115 is in place.
(y) Recurrence of medical condition means a documented need for
further medical treatment after release from treatment for the accepted
condition or injury when there is no accompanying work stoppage.
Continuous treatment for the original condition or injury is not
considered a ``need for further medical treatment after release from
treatment,'' nor is an examination without treatment.
(z) Representative means an individual or law firm properly
authorized by a claimant in writing to act for the claimant in
connection with a claim or proceeding under the FECA or this part.
(aa) Student means an individual defined at 5 U.S.C. 8101(17). Two
terms used in that particular definition are further defined as
follows:
(1) Additional type of educational or training institution means a
technical, trade, vocational, business or professional school
accredited or licensed by the United States Government or a State
Government or any political subdivision thereof providing courses of
not less than three months duration, that prepares the individual for a
livelihood in a trade, industry, vocation or profession.
(2) Year beyond the high school level means:
(i) The 12-month period beginning the month after the individual
graduates from high school, provided he or she had indicated an
intention to continue schooling within four months of high school
graduation, and each successive 12-month period in which there is
school attendance or the payment of compensation based on such
attendance; or
(ii) If the individual has indicated that he or she will not
continue schooling within four months of high school graduation, the
12-month period beginning with the month that the individual enters
school to continue his or her education, and each successive 12-month
period in which there is school attendance or the payment of
compensation based on such attendance.
(bb) Subluxation means an incomplete dislocation, off-centering,
misalignment, fixation or abnormal spacing of the vertebrae which must
be demonstrable on any x-ray film to an
[[Page 37909]]
individual trained in the reading of x-rays.
(cc) Surviving spouse means the husband or wife living with or
dependent for support upon a deceased employee at the time of his or
her death, or living apart for reasonable cause or because of the
deceased employee's desertion, unless otherwise defined under the FECA
for the specific benefit such as the FECA death gratuity at 5 U.S.C.
8102a.
(dd) Temporary aggravation of a pre-existing condition means that
factors of employment have directly caused that condition to be more
severe for a limited period of time and have left no greater impairment
than existed prior to the employment injury.
(ee) Traumatic injury means a condition of the body caused by a
specific event or incident, or series of events or incidents, within a
single workday or shift. Such condition must be caused by external
force, including stress or strain, which is identifiable as to time and
place of occurrence and member or function of the body affected.
Sec. 10.6 What special statutory definitions apply to dependents and
survivors?
(a) 5 U.S.C. 8133 provides that certain benefits are payable to
certain enumerated survivors of employees who have died from an injury
sustained in the performance of duty.
(b) 5 U.S.C. 8148 also provides that certain other benefits may be
payable to certain family members of employees who have been
incarcerated due to a felony conviction.
(c) 5 U.S.C. 8110(b) further provides that any employee who is
found to be eligible for a basic benefit shall be entitled to have such
basic benefit augmented at a specified rate for certain persons who
live in the beneficiary's household or who are dependent upon the
beneficiary for support.
(d) 5 U.S.C. 8101, 8110, 8133, and 8148, which define the nature of
such survivorship or dependency necessary to qualify a beneficiary for
a survivor's benefit or an augmented benefit, apply to the provisions
of this part but not to the death gratuity provided under subpart J.
(e) 5 U.S.C. 8102a provides the definitions for survivorship or
dependency necessary to qualify as a beneficiary for a death gratuity
benefit as well as allowing half the death gratuity benefit to be paid
to alternate beneficiary.
Sec. 10.7 What forms are needed to process claims under the FECA?
(a) Notice of injury, claims and certain specified reports shall be
made on forms prescribed by OWCP. Employers shall not modify these
forms or use substitute forms. Employers are expected to maintain an
adequate supply of the basic forms needed for the proper recording and
reporting of injuries.
------------------------------------------------------------------------
Form No. Title
------------------------------------------------------------------------
(1) CA-1............................... Federal Employee's Notice of
Traumatic Injury and Claim for
Continuation of Pay/
Compensation.
(2) CA-2............................... Notice of Occupational Disease
and Claim for Compensation.
(3) CA-2a.............................. Notice of Employee's Recurrence
of Disability and Claim for
Pay/Compensation.
(4) CA-3............................... Report of Work Status.
(5) CA-5............................... Claim for Compensation by
Widow, Widower and/or
Children.
(6) CA-5b.............................. Claim for Compensation by
Parents, Brothers, Sisters,
Grandparents, or
Grandchildren.
(7) CA-6............................... Official Superior's Report of
Employee's Death.
(8) CA-7............................... Claim for Compensation Due to
Traumatic Injury or
Occupational Disease.
(9) CA-7a.............................. Time Analysis Form.
(10) CA-7b............................. Leave Buy Back (LBB) Worksheet/
Certification and Election.
(11) CA-16............................. Authorization of Examination
and/or Treatment.
(12) CA-17............................. Duty Status Report.
(13) CA-20............................. Attending Physician's Report.
(14) CA-20a............................ Attending Physician's
Supplemental Report.
(15) CA-40............................. Designation of a Recipient of
the Federal Employees'
Compensation Act Death
Gratuity Payment under Section
1105 of Public Law 110-181
(Section 8102a).
(16) CA-41............................. Claim for Survivor Benefits
Under the Federal Employees'
Compensation Act Section 8102a
Death Gratuity.
(17) CA-42............................. Official Notice of Employees'
Death for Purposes of FECA
Section 8102a Death Gratuity.
(18) CA-1108........................... Statement of Recovery Letter
with Long Form.
(19) CA-1122........................... Statement of Recovery Letter
with Short Form.
------------------------------------------------------------------------
(b) Copies of the forms listed in this paragraph are available for
public inspection at the Office of Workers' Compensation Programs, U.S.
Department of Labor, Washington, DC 20210. They may also be obtained
from district offices, employers (i.e., safety and health offices,
supervisors), and the Internet, at http://www.dol.gov.
Information in Program Records
Sec. 10.10 Are all documents relating to claims filed under the FECA
considered confidential?
All records relating to claims for benefits, including copies of
such records maintained by an employer, are considered confidential and
may not be released, inspected, copied or otherwise disclosed except as
provided in the Freedom of Information Act and the Privacy Act of 1974
or under the routine uses provided by DOL/GOVT-1 if such release is
consistent with the purpose for which the record was created.
Sec. 10.11 Who maintains custody and control of FECA records?
All records relating to claims for benefits filed under the FECA,
including any copies of such records maintained by an employing agency,
are covered by the government-wide Privacy Act system of records
entitled DOL/GOVT-1 (Office of Workers' Compensation Programs, Federal
Employees' Compensation Act File). This system of records is maintained
by and under the control of OWCP, and, as such, all records covered by
DOL/GOVT-1 are official records of OWCP. The protection, release,
inspection and copying of records covered by DOL/GOVT-1 shall be
accomplished in accordance with the rules, guidelines and provisions of
this part, as well as those contained in 29 CFR parts 70 and 71, and
with the notice of the system of records and routine uses published in
the Federal Register. All questions relating to access/disclosure, and/
or amendment of FECA records maintained by OWCP or the employing
agency, are to be resolved in accordance with this section.
Sec. 10.12 How may a FECA claimant or beneficiary obtain copies of
protected records?
(a) A claimant seeking copies of his or her official FECA file
should address a request to the District Director of the OWCP office
having custody of the file. A claimant seeking copies of FECA-related
documents in the custody of the employer should follow the procedures
established by that agency.
(b) (1) While an employing agency may establish procedures that an
injured employee or beneficiary should follow in requesting access to
documents it maintains, any decision issued in response to such a
request must comply with the rules and regulations of the Department of
Labor which govern all other aspects of safeguarding these records.
(2) No employing agency has the authority to issue determinations
with
[[Page 37910]]
respect to requests for the correction or amendment of records
contained in or covered by DOL/GOVT-1. That authority is within the
exclusive control of OWCP. Thus, any request for correction or
amendment received by an employing agency must be referred to OWCP for
review and decision.
(3) Any administrative appeal taken from a denial issued by the
employing agency or OWCP shall be filed with the Solicitor of Labor in
accordance with 29 CFR 71.7 and 71.9.
Sec. 10.13 What process is used by a person who wants to correct
FECA-related documents?
Any request to amend a record covered by DOL/GOVT-1 should be
directed to the district office having custody of the official file. No
employer has the authority to issue determinations with regard to
requests for the correction of records contained in or covered by DOL/
GOVT-1. Any request for correction received by an employer must be
referred to OWCP for review and decision.
Rights and Penalties
Sec. 10.15 May compensation rights be waived?
No employer or other person may require an employee or other
claimant to enter into any agreement, either before or after an injury
or death, to waive his or her right to claim compensation under the
FECA. No waiver of compensation rights shall be valid.
Sec. 10.16 What criminal and civil penalties may be imposed in
connection with a claim under the FECA?
(a) A number of statutory provisions make it a crime to file a
false or fraudulent claim or statement with the Government in
connection with a claim under the FECA, or to wrongfully impede a FECA
claim. Included among these provisions are 18 U.S.C. 287, 1001, 1920,
and 1922. Furthermore, a civil action to recover benefits paid
erroneously under the FECA may be maintained under the False Claims
Act, 31 U.S.C. 3729-3733. Enforcement of such provisions that may apply
to claims under the FECA is within the jurisdiction of the Department
of Justice.
(b) In addition, administrative proceedings may be initiated under
the Program Fraud Civil Remedies Act of 1986 (PFCRA), 31 U.S.C. 3801-
12, to impose civil penalties and assessments against persons who make,
submit, or present, or cause to be made, submitted or presented, false,
fictitious or fraudulent claims or written statements to OWCP in
connection with a claim under the FECA. The Department of Labor's
regulations implementing the PFRCA are found at 29 CFR part 22.
Sec. 10.17 Is a beneficiary who defrauds the Government in connection
with a claim for benefits still entitled to those benefits?
When a beneficiary either pleads guilty to or is found guilty on
either Federal or State criminal charges of defrauding the Federal
Government in connection with a claim for benefits, the beneficiary's
entitlement to any further compensation benefits will terminate
effective the date of conviction, which is the date of the verdict or,
in the case of a plea bargain, the date the claimant made the plea in
open court (not the date of sentencing or the date court papers were
signed). The employing agency may, upon request, be required to provide
the documentation needed for termination under this section.
Termination of entitlement under this section is not affected by any
subsequent change in or recurrence of the beneficiary's medical
condition.
Sec. 10.18 Can a beneficiary who is incarcerated based on a felony
conviction still receive benefits?
(a) Whenever a beneficiary is incarcerated in a State or Federal
jail, prison, penal institution or other correctional facility due to a
State or Federal felony conviction, he or she forfeits all rights to
compensation benefits during the period of incarceration. A
beneficiary's right to compensation benefits for the period of his or
her incarceration is not restored after such incarceration ends, even
though payment of compensation benefits may resume. A beneficiary has
an affirmative duty to provide notice of any conviction and
imprisonment. The employing agency shall provide OWCP any information
or documentation they may have concerning such matters.
(b) If the beneficiary has eligible dependents, OWCP will pay
compensation to such dependents at a reduced rate during the period of
his or her incarceration, by applying the percentages of 5 U.S.C.
8133(a)(1) through (5) to the beneficiary's gross current entitlement
rather than to the beneficiary's monthly pay.
(c) If OWCP's decision on entitlement is pending when the period of
incarceration begins, and compensation is due for a period of time
prior to such incarceration, payment for that period will only be made
to the beneficiary following his or her release.
Subpart B--Filing Notices and Claims; Submitting Evidence
Notices and Claims for Injury, Disease, and Death--Employee or
Survivor's Actions
Sec. 10.100 How and when is a notice of traumatic injury filed?
(a) To claim benefits under the FECA, an employee who sustains a
work-related traumatic injury must give notice of the injury in writing
on Form CA-1, which may be obtained from the employer or from the
Internet at www.dol.gov under forms. The employee must forward this
notice to the employer. Another person, including the employer, may
give notice of injury on the employee's behalf. The person submitting a
notice shall include the Social Security Number (SSN) of the injured
employee. All such notices should be submitted electronically wherever
feasible to facilitate processing of such claims. All employers that
currently do not have such capability should create such a method by
December 31, 2012.
(b) For injuries sustained on or after September 7, 1974, a notice
of injury must be filed within three years of the injury. (The form
contains the necessary words of claim.) The requirements for filing
notice are further described in 5 U.S.C. 8119. Also see Sec. 10.205
concerning time requirements for filing claims for continuation of pay.
(1) If the claim is not filed within three years, compensation may
still be allowed if notice of injury was given within 30 days or the
employer had actual knowledge of the injury or death within 30 days
after occurrence. This knowledge may consist of written records or
verbal notification. An entry into an employee's medical record may
also satisfy this requirement if it is sufficient to place the employer
on notice of a possible work-related injury or disease.
(2) OWCP may excuse failure to comply with the three-year time
requirement because of truly exceptional circumstances (for example,
being held prisoner of war).
(3) The claimant may withdraw his or her claim (but not the notice
of injury) by so requesting in writing to OWCP at any time before OWCP
determines eligibility for benefits. Any continuation of pay (COP)
granted to an employee after a claim is withdrawn must be charged to
sick or annual leave, or considered an overpayment of pay consistent
with 5 U.S.C. 5584, at the employee's option.
(c) However, in cases of latent disability, the time for filing
claim does
[[Page 37911]]
not begin to run until the employee has a compensable disability and is
aware, or reasonably should have been aware, of the causal relationship
between the disability and the employment (see 5 U.S.C. 8122(b)).
Sec. 10.101 How and when is a notice of occupational disease filed?
(a) To claim benefits under the FECA, an employee who has a disease
which he or she believes to be work-related must give notice of the
condition in writing on Form CA-2, which may be obtained from the
employer or from the Internet at www.dol.gov under forms. The employee
must forward this notice to the employer. Another person, including the
employer, may do so on the employee's behalf. The person submitting a
notice shall include the Social Security Number (SSN) of the injured
employee. All such notices should be submitted electronically wherever
feasible to facilitate processing of such claims. All employers that
currently do not have such capability should create such a method by
December 31, 2012. The claimant may withdraw his or her claim (but not
the notice of occupational disease) by so requesting in writing to OWCP
at any time before OWCP determines eligibility for benefits.
(b) For occupational diseases sustained as a result of exposure to
injurious work factors that occurs on or after September 7, 1974, a
notice of occupational disease must be filed within three years of the
onset of the condition. (The form contains the necessary words of
claim.) The requirements for timely filing are described in Sec.
10.100(b)(1) through (3).
(c) However, in cases of latent disability, the time for filing
claim does not begin to run until the employee has a compensable
disability and is aware, or reasonably should have been aware, of the
causal relationship between the disability and the employment (see 5
U.S.C. 8122(b)).
Sec. 10.102 How and when is a claim for wage loss compensation filed?
(a) Form CA-7 is used to claim compensation for periods of
disability not covered by COP.
(1) An employee who is disabled with loss of pay for more than
three calendar days due to an injury, or someone acting on his or her
behalf, must file Form CA-7 before compensation can be paid.
(2) The employee shall complete the front of Form CA-7 and submit
the form to the employer for completion and transmission to OWCP. The
form should be completed as soon as possible, but no more than 14
calendar days after the date pay stops due to the injury or disease.
All such notices should be submitted electronically wherever feasible
to facilitate processing of such claims. All employers that currently
do not have such capability should create such a method by December 31,
2012.
(3) The requirements for filing claims are further described in 5
U.S.C. 8121.
(b) Form CA-7 is also used to claim compensation for additional
periods of disability following the initial injury.
(1) It is the employee's responsibility to submit Form CA-7.
Without receipt of such claim, OWCP has no knowledge of continuing wage
loss. Therefore, while disability continues, the employee should submit
a claim on Form CA-7 each two weeks until otherwise instructed by OWCP.
(2) The employee shall complete the front of Form CA-7 and submit
the form to the employer for completion and transmission to OWCP.
(3) The employee is responsible for submitting, or arranging for
the submittal of, medical evidence to OWCP which establishes both that
disability continues and that the disability is due to the work-related
injury. Form CA-20a is submitted with Form CA-7 for this purpose.
Sec. 10.103 How and when is a claim for permanent impairment filed?
Form CA-7 is used to claim compensation for impairment to a body
part covered under the schedule established by 5 U.S.C. 8107. All such
notices should be submitted electronically wherever feasible to
facilitate processing of such claims. All employers that currently do
not have such capability should create such a method by December 31,
2012. If Form CA-7 has already been filed to claim disability
compensation, an employee may file a claim for such impairment by
sending a letter to OWCP which specifies the nature of the benefit
claimed. OWCP may create a form specifically for schedule award claims;
if that form is created, only that form may be used to file a claim
under 5 U.S.C. 8107.
Sec. 10.104 How and when is a claim for recurrence filed?
(a) A recurrence should be reported on Form CA-2a if that
recurrence causes the employee to lose time from work and incur a wage
loss, or if the employee experiences a renewed need for treatment after
previously being released from care. However, a notice of recurrence
should not be filed when a new injury, new occupational disease, or new
event contributing to an already-existing occupational disease has
occurred. In these instances, the employee should file Form CA-1 or CA-
2.
(b) The employee has the burden of establishing by the weight of
reliable, probative and substantial evidence that the recurrence of
disability is causally related to the original injury.
(1) The employee must include a detailed factual statement as
described on Form CA-2a. The employer may submit comments concerning
the employee's statement.
(2) The employee should arrange for the submittal of a detailed
medical report from the attending physician as described on Form CA-2a.
The employee should also submit, or arrange for the submittal of,
similar medical reports for any examination and/or treatment received
after returning to work following the original injury.
(c) A claim for recurrence of disability is not available where
OWCP has issued a loss of wage-earning capacity determination. Under
that circumstance, the only method for claiming additional wage loss
compensation is through a request to modify that determination.
However, OWCP is not precluded from adjudicating a limited period of
disability following the issuance of a loss of wage-earning capacity
decision, such as where an employee has a demonstrated need for
surgery.
Sec. 10.105 How and when is a notice of death and claim for benefits
filed?
(a) If an employee dies from a work-related traumatic injury or an
occupational disease, any survivor may file a claim for death benefits
using Form CA-5 or CA-5b, which may be obtained from the employer or
from the Internet at www.dol.gov under forms. The survivor must provide
this notice in writing and forward it to the employer. Another person,
including the employer, may do so on the survivor's behalf. The
survivor may also submit the completed Form CA-5 or CA-5b directly to
OWCP. The survivor shall disclose the SSNs of all survivors on whose
behalf claim for benefits is made in addition to the SSN of the
deceased employee. All such notices should be submitted electronically
wherever feasible to facilitate processing of such claims. All
employers that currently do not have such capability should create such
a method by December 31, 2012. The survivor may withdraw his or her
claim (but not the notice of death) by so requesting in writing to OWCP
at any time before OWCP determines eligibility for benefits.
(b) For deaths that occur on or after September 7, 1974, a notice
of death must be filed within three years of the
[[Page 37912]]
death. The form contains the necessary words of claim. The requirements
for timely filing are described in Sec. 10.100(b)(1) through (3).
(c) However, in cases of death due to latent disability, the time
for filing the claim does not begin to run until the survivor is aware,
or reasonably should have been aware, of the causal relationship
between the death and the employment (see 5 U.S.C. 8122(b)).
(d) The filing of a notice of injury or occupational disease will
satisfy the time requirements for a death claim based on the same
injury or occupational disease. If an injured employee or someone
acting on the employee's behalf does not file a claim before the
employee's death, the right to claim compensation for disability other
than medical expenses ceases and does not survive.
(e) A survivor must be alive to receive any payment; there is no
vested right to such payment. A report as described in Sec. 10.414 of
this part must be filed once each year to support continuing payments
of compensation.
Notices and Claims for Injury, Disease, and Death--Employer's Actions
Sec. 10.110 What should the employer do when an employee files a
notice of traumatic injury or occupational disease?
(a) The employer shall complete the agency portion of Form CA-1
(for traumatic injury) or CA-2 (for occupational disease) no more than
10 working days after receipt of notice from the employee. The employer
shall also complete the Receipt of Notice and give it to the employee,
along with copies of both sides of Form CA-1 or Form CA-2.
(b) The employer must complete and transmit the form to OWCP within
10 working days after receipt of notice from the employee if the injury
or disease will likely result in:
(1) A medical charge against OWCP;
(2) Disability for work beyond the day or shift of injury;
(3) The need for more than two appointments for medical examination
and/or treatment on separate days, leading to time loss from work;
(4) Future disability;
(5) Permanent impairment; or
(6) Continuation of pay pursuant to 5 U.S.C. 8118.
(c) The employer should not wait for submittal of supporting
evidence before sending the form to OWCP.
(d) If none of the conditions in paragraph (b) of this section
applies, the Form CA-1 or CA-2 shall be retained as a permanent record
in the Employee Medical Folder in accordance with the guidelines
established by the Office of Personnel Management.
Sec. 10.111 What should the employer do when an employee files an
initial claim for compensation due to disability or permanent
impairment?
(a) Except for employees covered by paragraph (d) of this section,
when an employee is disabled by a work-related injury and loses pay for
more than three calendar days, or has a permanent impairment or serious
disfigurement as described in 5 U.S.C. 8107, the employer shall furnish
the employee with Form CA-7 for the purpose of claiming compensation.
(b) If the employee is receiving continuation of pay (COP), the
employer should give Form CA-7 to the employee by the 30th day of the
COP period and submit the form to OWCP by the 40th day of the COP
period. If the employee has not returned the form to the employer by
the 40th day of the COP period, the employer should ask him or her to
submit it as soon as possible.
(c) Upon receipt of Form CA-7 from the employee, or someone acting
on his or her behalf, the employer shall complete the appropriate
portions of the form. As soon as possible, but no more than five
working days after receipt from the employee, the employer shall
forward the completed Form CA-7 and any accompanying medical report to
OWCP.
(d) Postal Service employees are not entitled to compensation or
continuation of pay for the waiting period, the first three days of
disability. Such employees may use annual leave, sick leave or leave
without pay during that period; however, if the disability exceeds 14
days, the employee may have their sick leave or annual leave reinstated
or receive pay for the time spent on leave without pay. This waiting
period does not apply to the provision of medical care, and days of
time loss for medical treatment only with no work-related disability do
not count as part of the waiting period. A Postal Service employee
seeking wage loss compensation for this period should utilize Form CA-7
to claim such benefits.
Sec. 10.112 What should the employer do when an employee files a
claim for continuing compensation due to disability?
(a) If the employee continues in a leave-without-pay status due to
a work-related injury after the period of compensation initially
claimed on Form CA-7, the employer shall furnish the employee with
another Form CA-7 for the purpose of claiming continuing compensation.
(b) Upon receipt of Form CA-7 from the employee, or someone acting
on his or her behalf, the employer shall complete the appropriate
portions of the form. As soon as possible, but no more than five
working days after receipt from the employee, the employer shall
forward the completed Form CA-7 and any accompanying medical report to
OWCP.
Sec. 10.113 What should the employer do when an employee dies from a
work-related injury or disease?
(a) The employer shall immediately report a death due to a work-
related traumatic injury or occupational disease to OWCP by telephone,
telegram, or facsimile (fax). No more than 10 working days after
notification of the death, the employer shall complete and send Form
CA-6 to OWCP.
(b) When possible, the employer shall furnish a Form CA-5 or CA-5b
to all persons likely to be entitled to compensation for death of an
employee. The employer should also supply information about completing
and filing the form.
(c) The employer shall promptly transmit Form CA-5 or CA-5b to
OWCP. The employer shall also promptly transmit to OWCP any other claim
or paper submitted which appears to claim compensation on account of
death.
Evidence and Burden of Proof
Sec. 10.115 What evidence is needed to establish a claim?
Forms CA-1, CA-2, CA-5 and CA-5b describe the basic evidence
required. OWCP may send a request for additional evidence to the
claimant and to his or her representative, if any; however the burden
of proof still remains with the claimant. Evidence should be submitted
in writing. The evidence submitted must be reliable, probative and
substantial. Each claim for compensation must meet five requirements
before OWCP can accept it. These requirements, which the employee must
establish to meet his or her burden of proof, are as follows:
(a) The claim was filed within the time limits specified by the
FECA;
(b) The injured person was, at the time of injury, an employee of
the United States as defined in 5 U.S.C. 8101(1) and Sec. 10.5(h) of
this part;
(c) The fact that an injury, disease or death occurred;
(d) The injury, disease or death occurred while the employee was in
the performance of duty; and
(e) The medical condition for which compensation or medical
benefits is claimed is causally related to the
[[Page 37913]]
claimed injury, disease or death. Neither the fact that the condition
manifests itself during a period of Federal employment, nor the belief
of the claimant that factors of employment caused or aggravated the
condition, is sufficient in itself to establish causal relationship.
(f) In all claims, the claimant is responsible for submitting, or
arranging for submittal of, a medical report from the attending
physician. For wage loss benefits, the claimant must also submit
medical evidence showing that the condition claimed is disabling. The
rules for submitting medical reports are found in Sec. Sec. 10.330
through 10.333.
Sec. 10.116 What additional evidence is needed in cases based on
occupational disease?
(a) The employee must submit the specific detailed information
described on Form CA-2 and should submit any checklist (Form CA-35, A-
H) provided by the employer. OWCP has developed these checklists to
address particular occupational diseases. The medical report should
also include the information specified on the checklist for the
particular disease claimed.
(b) The employer should submit the specific detailed information
described on Form CA-2 and on any checklist pertaining to the claimed
disease.
Sec. 10.117 What happens if, in any claim, the employer contests any
of the facts as stated by the claimant?
(a) An employer who has reason to disagree with any aspect of the
claimant's report shall submit a statement to OWCP that specifically
describes the factual allegation or argument with which it disagrees
and provide evidence or argument to support its position. The employer
may include supporting documents such as witness statements, medical
reports or records, or any other relevant information.
(b) Any such statement shall be submitted to OWCP with the notice
of traumatic injury or death, or within 30 calendar days from the date
notice of occupational disease or death is received from the claimant.
If the employer does not submit a written explanation to support the
disagreement, OWCP may accept the claimant's report of injury as
established. The employer may not use a disagreement with an aspect of
the claimant's report to delay forwarding the claim to OWCP or to
compel or induce the claimant to change or withdraw the claim.
Sec. 10.118 Does the employer participate in the claims process in
any other way?
(a) The employer is responsible for submitting to OWCP all relevant
and probative factual and medical evidence in its possession, or which
it may acquire through investigation or other means. Such evidence may
be submitted at any time.
(b) The employer may ascertain the events surrounding an injury and
the extent of disability where it appears that an employee who alleges
total disability may be performing other work, or may be engaging in
activities which would indicate less than total disability. This
authority is in addition to that given in Sec. 10.118(a). However, the
provisions of the Privacy Act apply to any endeavor by the employer to
ascertain the facts of the case (see Sec. Sec. 10.10 and 10.11).
(c) The employer does not have the right, except as provided in
subpart C of this part, to actively participate in the claims
adjudication process.
Sec. 10.119 What action will OWCP take with respect to information
submitted by the employer?
OWCP will consider all evidence submitted appropriately, and OWCP
will inform the employee, the employee's representative, if any, and
the employer of any action taken. Where an employer contests a claim
within 30 days of the initial submittal and the claim is later
approved, OWCP will notify the employer of the rationale for approving
the claim.
Sec. 10.120 May a claimant submit additional evidence?
A claimant or a person acting on his or her behalf may submit to
OWCP at any time any other evidence relevant to the claim.
Sec. 10.121 What happens if OWCP needs more evidence from the
claimant?
If the claimant submits factual evidence, medical evidence, or
both, but OWCP determines that this evidence is not sufficient to meet
the burden of proof, OWCP will inform the claimant of the additional
evidence needed. The claimant will be allowed at least 30 days to
submit the evidence required. OWCP is not required to notify the
claimant a second time if the evidence submitted in response to its
first request is not sufficient to meet the burden of proof.
Decisions on Entitlement to Benefits
Sec. 10.125 How does OWCP determine entitlement to benefits?
(a) In reaching any decision with respect to FECA coverage or
entitlement, OWCP considers the claim presented by the claimant, the
report by the employer, and the results of such investigation as OWCP
may deem necessary.
(b) OWCP claims staff apply the law, the regulations, and its
procedures to the facts as reported or obtained upon investigation.
They also apply decisions of the Employees' Compensation Appeals Board
and administrative decisions of OWCP as set forth in FECA Program
Memoranda.
Sec. 10.126 What does the decision contain?
The decision shall contain findings of fact and a statement of
reasons. It is accompanied by information about the claimant's appeal
rights, which may include the right to a hearing, a reconsideration,
and/or a review by the Employees' Compensation Appeals Board. (See
subpart G of this part.)
Sec. 10.127 To whom is the decision sent?
A copy of the decision shall be mailed to the employee's last known
address. If the employee has a designated representative before OWCP, a
copy of the decision will also be mailed to the representative. A copy
of the decision will also be sent to the employer.
Subpart C--Continuation of Pay
Sec. 10.200 What is continuation of pay?
(a) For most employees who sustain a traumatic injury, the FECA
provides that the employer must continue the employee's regular pay
during any periods of resulting disability, up to a maximum of 45
calendar days. This is called continuation of pay, or COP. The
employer, not OWCP, pays COP. Unlike wage loss benefits, COP is subject
to taxes and all other payroll deductions that are made from regular
income.
(b) The employer must continue the pay of an employee, except for
Postal Service employees pursuant to 5 U.S.C. 8117 and as provided
below in paragraph (c) of this section, who is eligible for COP, and
may not require the employee to use his or her own sick or annual
leave, unless the provisions of Sec. Sec. 10.200(c), 10.220, or 10.222
apply. However, while continuing the employee's pay, the employer may
controvert the employee's COP entitlement pending a final determination
by OWCP. OWCP has the exclusive authority to determine questions of
entitlement and all other issues relating to COP.
(c) Postal Service employees are not entitled to continuation of
pay for the first 3 days of temporary disability and may use annual,
sick or leave without pay during that period, except that if the
disability exceeds 14 days or is followed by permanent disability, the
Postal
[[Page 37914]]
Service employee may have that leave restored.
(d) The FECA excludes certain persons from eligibility for COP. COP
cannot be authorized for members of these excluded groups, which
include but are not limited to: persons rendering personal service to
the United States similar to the service of a civil officer or employee
of the United States, without pay or for nominal pay; volunteers (for
instance, in the Civil Air Patrol and Peace Corps); Job Corps and Youth
Conservation Corps enrollees; individuals in work- study programs, and
grand or petit jurors (unless otherwise Federal employees).
Eligibility for COP
Sec. 10.205 What conditions must be met to receive COP?
(a) To be eligible for COP, a person must:
(1) Have a ``traumatic injury'' as defined at Sec. 10.5(ee) which
is job-related and the cause of the disability, and/or the cause of
lost time due to the need for medical examination and treatment;
(2) File Form CA-1 within 30 days of the date of the injury (but if
that form is not available, using another form would not alone preclude
receipt); and
(3) Begin losing time from work due to the traumatic injury within
45 days of the injury.
(b) OWCP may find that the employee is not entitled to COP for
other reasons consistent with the statute (see Sec. 10.220).
Sec. 10.206 May an employee who uses leave after an injury later
decide to use COP instead?
On Form CA-1, an employee may elect to use accumulated sick or
annual leave, or leave advanced by the agency, instead of electing COP.
The employee can change the election between leave and COP for
prospective periods at any point while eligibility for COP remains. The
employee may also change the election for past periods and request COP
in lieu of leave already taken for the same period. In either
situation, the following provisions apply:
(a) The request must be made to the employer within one year of the
date the leave was used or the date of the written approval of the
claim by OWCP (if written approval is issued), whichever is later.
(b) Where the employee is otherwise eligible, the agency shall
restore leave taken in lieu of any of the 45 COP days. Where any of the
45 COP days remain unused, the agency shall continue pay prospectively.
(c) The use of leave may not be used to delay or extend the 45-day
COP period or to otherwise affect the time limitation as provided by 5
U.S.C. 8117. Therefore, any leave used during the period of eligibility
counts towards the 45-day maximum entitlement to COP.
Sec. 10.207 May an employee who returns to work, then stops work
again due to the effects of the injury, receive COP?
If the employee recovers from disability and returns to work, then
becomes disabled again and stops work, the employer shall pay any of
the 45 days of entitlement to COP not used during the initial period of
disability where:
(a) The employee completes Form CA-2a and elects to receive regular
pay;
(b) OWCP did not deny the original claim for disability;
(c) The disability recurs and the employee stops work within 45
days of the time the employee first returned to work following the
initial period of disability; and
(d) Pay has not been continued for the entire 45 days.
Responsibilities
Sec. 10.210 What are the employee's responsibilities in COP cases?
An employee who sustains a traumatic injury which he or she
considers disabling, or someone authorized to act on his or her behalf,
must take the following actions to ensure continuing eligibility for
COP. The employee must:
(a) Complete and submit Form CA-1 to the employing agency as soon
as possible, but no later than 30 days from the date the traumatic
injury occurred.
(b) Ensure that medical evidence supporting disability resulting
from the claimed traumatic injury, including a statement as to when the
employee can return to his or her date of injury job, is provided to
the employer within 10 calendar days after filing the claim for COP.
(c) Ensure that relevant medical evidence is submitted to OWCP, and
cooperate with OWCP in developing the claim.
(d) Ensure that the treating physician specifies work limitations
and provides them to the employer and/or representatives of OWCP.
(e) Provide to the treating physician a description of any specific
alternative positions offered the employee, and ensure that the
treating physician responds promptly to the employer and/or OWCP, with
an opinion as to whether and how soon the employee could perform that
or any other specific position.
Sec. 10.211 What are the employer's responsibilities in COP cases?
Once the employer learns of a traumatic injury sustained by an
employee, it shall:
(a) Provide a Form CA-1 and Form CA-16 to authorize medical care in
accordance with Sec. 10.300. Failure to do so may mean that OWCP will
not uphold any termination of COP by the employer.
(b) Advise the employee of the right to receive COP, and the need
to elect among COP, annual or sick leave or leave without pay, for any
period of disability.
(c) Inform the employee of any decision to controvert COP and/or
terminate pay, and the basis for doing so.
(d) Complete Form CA-1 and transmit it, along with all other
available pertinent information, (including the basis for any
controversion), to OWCP within 10 working days after receiving the
completed form from the employee.
Calculation of COP
Sec. 10.215 How does OWCP compute the number of days of COP used?
COP is payable for a maximum of 45 calendar days, and every day
used is counted toward this maximum. The following rules apply:
(a) Time lost on the day or shift of the injury does not count
toward COP. (Instead, the agency must keep the employee in a pay status
for that period);
(b) The first COP day is the first day disability begins following
the date of injury (providing it is within the 45 days following the
date of injury), except where the injury occurs before the beginning of
the work day or shift, in which case the date of injury is charged to
COP;
(c) Any part of a day or shift (except for the day of the injury)
counts as a full day toward the 45 calendar day total;
(d) Regular days off are included if COP has been used on the
regular work days immediately preceding or following the regular day(s)
off, and medical evidence supports disability; and
(e) Leave used during a period when COP is otherwise payable is
counted toward the 45-day COP maximum as if the employee had been in a
COP status.
(f) For employees with part-time or intermittent schedules, all
calendar days on which medical evidence indicates disability are
counted as COP days, regardless of whether the employee was or would
have been scheduled to work on those days. The rate at which COP is
paid for these employees is calculated according to Sec. 10.216(b).
[[Page 37915]]
Sec. 10.216 How is the pay rate for COP calculated?
The employer shall calculate COP using the period of time and the
weekly pay rate.
(a) The pay rate for COP purposes is equal to the employee's
regular ``weekly'' pay (the average of the weekly pay over the
preceding 52 weeks).
(1) The pay rate excludes overtime pay, but includes other
applicable extra pay except to the extent prohibited by law.
(2) Changes in pay or salary (for example, promotion, demotion,
within-grade increases, termination of a temporary detail, etc.) which
would have otherwise occurred during the 45-day period are to be
reflected in the weekly pay determination.
(b) The weekly pay for COP purposes is determined according to the
following formulas:
(1) For full or part-time workers (permanent or temporary) who work
the same number of hours each week of the year (or of the appointment),
the weekly pay rate is the hourly pay rate (A) in effect on the date of
injury multiplied by (x) the number of hours worked each week (B): A x
B = Weekly Pay Rate.
(2) For part-time workers (permanent or temporary) who do not work
the same number of hours each week, but who do work each week of the
year (or period of appointment), the weekly pay rate is an average of
the weekly earnings, established by dividing (/) the total earnings
(excluding overtime) from the year immediately preceding the injury (A)
by the number of weeks (or partial weeks) worked in that year (B): A /
B = Weekly Pay Rate.
(3) For intermittent and seasonal workers, whether permanent or
temporary, who do not work either the same number of hours or every
week of the year (or period of appointment), the weekly pay rate is the
average weekly earnings established by dividing (/) the total earnings
during the full 12-month period immediately preceding the date of
injury (excluding overtime) (A), by the number of weeks (or partial
weeks) worked during that year (B) (that is, A / B); or 150 times the
average daily wage earned in the employment during the days employed
within the full year immediately preceding the date of injury divided
by 52 weeks, whichever is greater.
Sec. 10.217 Is COP charged if the employee continues to work, but in
a different job that pays less?
If the employee cannot perform the duties of his or her regular
position, but instead works in another job with different duties with
no loss in pay, then COP is not chargeable. COP must be paid and the
days counted against the 45 days authorized by law whenever an actual
reduction of pay results from the injury, including a reduction of pay
for the employee's normal administrative workweek that results from a
change or diminution in his or her duties following an injury. However,
this does not include a reduction of pay that is due solely to an
employer being prohibited by law from paying extra pay to an employee
for work he or she does not actually perform.
Controversion and Termination of COP
Sec. 10.220 When is an employer not required to pay COP?
An employer shall continue the regular pay of an eligible employee
without a break in time for up to 45 calendar days, except when, and
only when:
(a) The disability was not caused by a traumatic injury;
(b) The employee is not a citizen of the United States or Canada;
(c) No written claim was filed within 30 days from the date of
injury;
(d) The injury was not reported until after employment has been
terminated;
(e) The injury occurred off the employing agency's premises and was
otherwise not within the performance of official duties;
(f) The injury was caused by the employee's willful misconduct,
intent to injure or kill himself or herself or another person, or was
proximately caused by intoxication by alcohol or illegal drugs; or
(g) Work did not stop until more than 45 days following the injury.
Sec. 10.221 How is a claim for COP controverted?
When the employer stops an employee's pay for one of the reasons
cited in Sec. 10.220, the employer must controvert the claim for COP
on Form CA-1, explaining in detail the basis for the refusal. The final
determination on entitlement to COP always rests with OWCP.
Sec. 10.222 When may an employer terminate COP which has already
begun?
(a) Where the employer has continued the pay of the employee, it
may be stopped only when at least one of the following circumstances is
present:
(1) Medical evidence which on its face supports disability due to a
work-related injury is not received within 10 calendar days after the
claim is submitted (unless the employer's own investigation shows
disability to exist). Where the medical evidence is later provided,
however, COP shall be reinstated retroactive to the date of
termination;
(2) The medical evidence from the treating physician shows that the
employee is not disabled from his or her regular position;
(3) Medical evidence from the treating physician shows that the
employee is not totally disabled, and the employee refuses a written
offer of a suitable alternative position which is approved by the
attending physician. If OWCP later determines that the position was not
suitable, OWCP will direct the employer to grant the employee COP
retroactive to the termination date.
(4) The employee returns to work with no loss of pay;
(5) The employee's period of employment expires or employment is
otherwise terminated (as established prior to the date of injury);
(6) OWCP directs the employer to stop COP; and/or
(7) COP has been paid for 45 calendar days.
(b) An employer may not interrupt or stop COP to which the employee
is otherwise entitled because of a disciplinary action, unless a
preliminary notice was issued to the employee before the date of injury
and the action becomes final or otherwise takes effect during the COP
period.
(c) An employer cannot otherwise stop COP unless it does so for one
of the reasons found in this section or Sec. 10.220. Where an employer
stops COP, it must file a controversion with OWCP, setting forth the
basis on which it terminated COP, no later than the effective date of
the termination.
Sec. 10.223 Are there other circumstances under which OWCP will not
authorize payment of COP?
When OWCP finds that an employee or his or her representative
refuses or obstructs a medical examination required by OWCP, the right
to COP is suspended until the refusal or obstruction ceases. COP
already paid or payable for the period of suspension is forfeited. If
already paid, the COP may be charged to annual or sick leave or
considered an overpayment of pay consistent with 5 U.S.C. 5584.
Sec. 10.224 What happens if OWCP finds that the employee is not
entitled to COP after it has been paid?
Where OWCP finds that the employee is not entitled to COP after it
has been paid, the employee may chose to have the time charged to
annual or sick leave, or considered an overpayment of pay under 5
U.S.C. 5584. The employer must correct any deficiencies in COP as
directed by OWCP.
[[Page 37916]]
Subpart D--Medical and Related Benefits
Emergency Medical Care
Sec. 10.300 What are the basic rules for authorizing emergency
medical care?
(a) When an employee sustains a work-related traumatic injury that
requires medical examination, medical treatment, or both, the employer
shall authorize such examination and/or treatment by issuing a Form CA-
16. This form may be used for occupational disease or illness only if
the employer has obtained prior permission from OWCP.
(b) The employer shall issue Form CA-16 within four hours of the
claimed injury. If the employer gives verbal authorization for such
care, he or she should issue a Form CA-16 within 48 hours. The employer
is not required to issue a Form CA-16 more than one week after the
occurrence of the claimed injury. The employer may not authorize
examination or medical or other treatment in any case that OWCP has
disallowed.
(c) Form CA-16 must contain the full name and address of the
qualified physician or qualified medical facility authorized to provide
service. The authorizing official must sign and date the form and must
state his or her title. Form CA-16 authorizes treatment for 60 days
from the date of injury, unless OWCP terminates the authorization
sooner.
(d) The employer should advise the employee of the right to his or
her initial choice of physician. The employer shall allow the employee
to select a qualified physician, after advising him or her of those
physicians excluded under subpart I of this part. The physician may be
in private practice, including a health maintenance organization (HMO),
or employed by a Federal agency such as the Department of the Army,
Navy, Air Force, or Veterans Affairs. Any qualified physician may
provide initial treatment of a work-related injury in an emergency. See
also Sec. 10.825(b).
Sec. 10.301 May the physician designated on Form CA-16 refer the
employee to another medical specialist or medical facility?
The physician designated on Form CA-16 may refer the employee for
further examination, testing, or medical care. OWCP will pay this
physician or facility's bill on the authority of Form CA-16. The
employer should not issue a second Form CA-16.
Sec. 10.302 Should the employer authorize medical care if he or she
doubts that the injury occurred, or that it is work-related?
If the employer doubts that the injury occurred, or that it is
work-related, he or she should authorize medical care by completing
Form CA-16 and checking block 6B of the form. If the medical and
factual evidence sent to OWCP shows that the condition treated is not
work-related, OWCP will notify the employee, the employer, and the
physician or hospital that OWCP will not authorize payment for any
further treatment.
Sec. 10.303 Should the employer use a Form CA-16 to authorize medical
testing when an employee is exposed to a workplace hazard just once?
(a) Simple exposure to a workplace hazard, such as an infectious
agent, does not constitute a work-related injury entitling an employee
to medical treatment under the FECA. The employer therefore should not
use a Form CA-16 to authorize medical testing for an employee who has
merely been exposed to a workplace hazard, unless the employee has
sustained an identifiable injury or medical condition as a result of
that exposure. OWCP will authorize preventive treatment only under
certain well-defined circumstances (see Sec. 10.313).
(b) Employers may be required under other statutes or regulations
to provide their employees with medical testing and/or other services
in situations described in paragraph (a) of this section. For example,
regulations issued by the Occupational Safety and Health Administration
at 29 CFR chapter XVII require employers to provide their employees
with medical consultations and/or examinations when they either exhibit
symptoms consistent with exposure to a workplace hazard, or when an
identifiable event such as a spill, leak or explosion occurs and
results in the likelihood of exposure to a workplace hazard. In
addition, 5 U.S.C. 7901 authorizes employers to establish health
programs whose staff can perform tests for workplace hazards, counsel
employees for exposure or feared exposure to such hazards, and provide
health care screening and other associated services.
Sec. 10.304 Are there any exceptions to these procedures for
obtaining medical care?
In cases involving emergencies or unusual circumstances, OWCP may
authorize treatment in a manner other than as stated in this subpart.
Medical Treatment and Related Issues
Sec. 10.310 What are the basic rules for obtaining medical care?
(a) The employee is entitled to receive all medical services,
appliances or supplies which a qualified physician prescribes or
recommends and which OWCP considers necessary to treat the work-related
injury. Billing for these services is described in subpart I of this
part. The employee need not be disabled to receive such treatment. If
there is any doubt as to whether a specific service, appliance or
supply is necessary to treat the work-related injury, the employee
should consult OWCP prior to obtaining it through the automated
authorization process described in Sec. 10.800. OWCP may also utilize
the services of a field nurse to facilitate and coordinate medical care
for the employee. OWCP may contract with a specific provider or
providers to supply such services or appliances, including durable
medical equipment and prescribed medications.
(b) Any qualified physician or qualified hospital may provide such
services, appliances and supplies. Non-physician providers such as
physicians' assistants, nurse practitioners and physical therapists may
also provide authorized services for injured employees to the extent
allowed by applicable Federal and State law.
(c) Where OWCP has not contracted for the provision of appliances
or supplies, only a supplier of durable medical equipment that is
registered in Medicare's Durable Medical Equipment, Prosthetics,
Orthotics and Supplies Accreditation process may furnish such
appliances and supplies. OWCP may apply a test of cost-effectiveness to
appliances and supplies, may offset the cost of prior rental payments
against a future purchase price, and may provide refurbished appliances
where appropriate.
Sec. 10.311 What are the special rules for the services of
chiropractors?
(a) The services of chiropractors that may be reimbursed are
limited by the FECA to treatment to correct a spinal subluxation. The
costs of physical and related laboratory tests performed by or required
by a chiropractor to diagnose such a subluxation are also payable.
(b) In accordance with 5 U.S.C. 8101(3), a diagnosis of spinal
``subluxation as demonstrated by X-ray to exist'' must appear in the
chiropractor's report before OWCP can consider payment of a
chiropractor's bill.
(c) A chiropractor may interpret his or her x-rays to the same
extent as any other physician. To be given any weight,
[[Page 37917]]
the medical report must state that x-rays support the finding of spinal
subluxation. OWCP will not necessarily require submittal of the x-ray,
or a report of the x-ray, but the report must be available for
submittal on request.
(d) A chiropractor may also provide services in the nature of
physical therapy under the direction of, and as prescribed by, a
qualified physician.
Sec. 10.312 What are the special rules for the services of clinical
psychologists?
A clinical psychologist may serve as a physician only within the
scope of his or her practice as defined by State law. Therefore, a
clinical psychologist may not serve as a physician for conditions that
include a physical component unless the applicable State law allows
clinical psychologists to treat physical conditions. A clinical
psychologist may also perform testing, evaluation and other services
under the direction of a qualified physician.
Sec. 10.313 Will OWCP pay for preventive treatment?
The FECA does not authorize payment for preventive measures such as
vaccines and inoculations, and in general, preventive treatment may be
a responsibility of the employing agency under the provisions of 5
U.S.C. 7901 (see Sec. 10.303). However, OWCP can authorize treatment
for the following conditions, even though such treatment is designed,
in part, to prevent further injury:
(a) Complications of preventive measures which are provided or
sponsored by the agency, such as an adverse reaction to prophylactic
immunization.
(b) Actual or probable exposure to a known contaminant due to an
injury, thereby requiring disease-specific measures against infection.
Examples include the provision of tetanus antitoxin or booster toxoid
injections for puncture wounds; administration of rabies vaccine for a
bite from a rabid or potentially rabid animal; or appropriate measures
where exposure to human immunodeficiency virus (HIV) has occurred.
(c) Conversion of tuberculin reaction from negative to positive
following exposure to tuberculosis in the performance of duty. In this
situation, the appropriate therapy may be authorized.
(d) Where injury to one eye has resulted in loss of vision,
periodic examination of the uninjured eye to detect possible
sympathetic involvement of the uninjured eye at an early stage.
Sec. 10.314 Will OWCP pay for the services of an attendant?
Yes, OWCP will pay for the services of an attendant where the need
for such services has been medically documented. In the exercise of the
discretion afforded by 5 U.S.C. 8111(a), the Director has determined
that, except where attendant service payments were being made prior to
January 4, 1999, direct payments to the claimant to cover such services
will no longer be made. Rather, the cost of providing attendant
services will be paid under section 8103 of the Act, and medical bills
for these services will be considered under Sec. 10.801, so long as
the personal care services have been determined to be medically
necessary and are provided by a home health aide, licensed practical
nurse, or similarly trained individual, subject to requirements
specified by OWCP. By paying for the services under section 8103, OWCP
can better determine whether the services provided are necessary, and
what type of provider is most qualified to provide adequate care to
meet the needs of the injured employee. In addition, a system requiring
the personal care provider to submit a bill to OWCP, where the amount
billed will be subject to OWCP's fee schedule, will result in greater
fiscal accountability.
Sec. 10.315 Will OWCP pay for transportation to obtain medical
treatment?
(a) The employee is entitled to reimbursement of reasonable and
necessary expenses, including transportation needed to obtain
authorized medical services, appliances or supplies. To determine what
is a reasonable distance to travel, OWCP will consider the availability
of services, the employee's condition, and the means of transportation.
Generally, a roundtrip distance of up to 100 miles is considered a
reasonable distance to travel. Travel should be undertaken by the
shortest route, and if practical, by public conveyance. If the medical
evidence shows that the employee is unable to use these means of
transportation, OWCP may authorize travel by taxi or special
conveyance.
(b) For non-emergency medical treatment, if roundtrip travel of
more than 100 miles is contemplated, or air transportation or overnight
accommodations will be needed, the employee must submit a written
request to OWCP for prior authorization with information describing the
circumstances and necessity for such travel expenses. OWCP will approve
the request if it determines that the travel expenses are reasonable
and necessary, and are incident to obtaining authorized medical
services, appliances or supplies. Requests for travel expenses that are
often approved include those resulting from referrals to a specialist
for further medical treatment, and those involving air transportation
of an employee who lives in a remote geographical area with limited
local medical services.
(c) If a claimant disagrees with the decision of OWCP that
requested travel expenses are either not reasonable or necessary, or
are not incident to obtaining authorized medical services or supplies,
he or she may utilize the appeals process described in subpart G of
this part.
(d) The standard form designated for medical travel refund requests
is Form OWCP-957 and must be used to seek reimbursement under this
section. This form can be obtained from OWCP.
Sec. 10.316 After selecting a treating physician, may an employee
choose to be treated by another physician instead?
(a) When the physician originally selected to provide treatment for
a work-related injury refers the employee to a specialist for further
medical care, the employee need not consult OWCP for approval. In all
other instances, however, the employee must submit a written request to
OWCP with his or her reasons for desiring a change of physician.
(b) OWCP will approve the request if it determines that the reasons
submitted are sufficient. Requests that are often approved include
those for transfer of care from a general practitioner to a physician
who specializes in treating conditions like the work-related one, or
the need for a new physician when an employee has moved. The employer
may not authorize a change of physicians.
Directed Medical Examinations
Sec. 10.320 Can OWCP require an employee to be examined by another
physician?
OWCP sometimes needs a second opinion from a medical specialist.
The employee must submit to examination by a qualified physician as
often and at such times and places as OWCP considers reasonably
necessary. The employee may have a qualified physician, paid by him or
her, present at such examination. However, the employee is not entitled
to have anyone else present at the examination unless there is
rationalized medical evidence that establishes that someone else is
needed in the room or OWCP decides that exceptional circumstances
exist. Where an employee requires an accommodation, such as where a
hearing-impaired employee needs an
[[Page 37918]]
interpreter, the presence of an interpreter will be allowed. Also, OWCP
may send a case file for second opinion review where actual examination
is not needed, or where the employee is deceased.
Sec. 10.321 What happens if the opinion of the physician selected by
OWCP differs from the opinion of the physician selected by the
employee?
(a) If one medical opinion holds more probative value, OWCP will
base its determination of entitlement on that medical conclusion (see
Sec. 10.502). A difference in medical opinion sufficient to be
considered a conflict occurs when two reports of virtually equal weight
and rationale reach opposing conclusions (see James P. Roberts, 31 ECAB
1010 (1980)).
(b) If a conflict exists between the medical opinion of the
employee's physician and the medical opinion of either a second opinion
physician or an OWCP medical adviser or consultant, OWCP shall appoint
a third physician to make an examination (see Sec. 10.502). This is
called a referee or impartial examination. OWCP will select a physician
who is qualified in the appropriate specialty and who has had no prior
connection with the case. The employee is not entitled to have anyone
present at the examination unless OWCP decides that exceptional
circumstances exist. For example, where a hearing-impaired employee
needs an interpreter, the presence of an interpreter would be allowed.
Also, a case file may be sent for referee or impartial medical review
where there is no need for an actual examination, or where the employee
is deceased.
Sec. 10.322 Who pays for second opinion and referee examinations?
OWCP will pay second opinion and referee medical specialists
directly. OWCP will reimburse the employee all necessary and reasonable
expenses incident to such an examination, including transportation
costs and actual wages lost for the time needed to submit to an
examination required by OWCP.
Sec. 10.323 What are the penalties for failing to report for or
obstructing a second opinion or referee examination?
(a) If an employee refuses to submit to or in any way obstructs an
examination required by OWCP, including testing such as functional
capacity determinations conducted in connection with an OWCP-directed
medical examination, his or her right to compensation under the FECA is
suspended under 5 U.S.C. 8123(d) until such refusal or obstruction
stops. The action of the employee's representative is considered to be
the action of the employee for purposes of this section. The employee
will forfeit compensation otherwise paid or payable under the FECA for
the period of the refusal or obstruction, and any compensation already
paid for that period will be declared an overpayment and will be
subject to recovery pursuant to 5 U.S.C. 8129.
(b) If the employee does not report for an OWCP-directed
examination or in any way obstructs this examination, he or she may
provide an explanation to OWCP within 14 days. If this explanation does
not establish good cause for the employee's actions, entitlement to
compensation will be suspended in accordance with 5 U.S.C. 8123(d).
Should the employee subsequently agree to attend the examination or
cease the obstruction (as expressed in writing or by telephone
documented on Form CA-110), OWCP will restore any periodic benefits to
which the employee is entitled when the employee actually reports for
and cooperates with the examination. Payment is retroactive to the date
the employee agreed to attend or cease obstruction of the examination.
Sec. 10.324 May an employer require an employee to undergo a physical
examination in connection with a work-related injury?
The employer may have authority independent of the FECA to require
the employee to undergo a medical examination to determine whether he
or she meets the medical requirements of the position held or can
perform the duties of that position. Nothing in the FECA or in this
part affects such authority. However, no agency-required examination or
related activity shall interfere with the employee's initial choice of
physician or the provision of any authorized examination or treatment,
including the issuance of Form CA-16.
Medical Reports
Sec. 10.330 What are the requirements for medical reports?
In all cases reported to OWCP, a medical report from the attending
physician is required. This report should include:
(a) Dates of examination and treatment;
(b) History given by the employee;
(c) Physical findings;
(d) Results of diagnostic tests;
(e) Diagnosis;
(f) Course of treatment;
(g) A description of any other conditions found but not due to the
claimed injury;
(h) The treatment given or recommended for the claimed injury;
(i) The physician's opinion, with medical reasons, as to causal
relationship between the diagnosed condition(s) and the factors or
conditions of the employment;
(j) The extent of disability affecting the employee's ability to
work due to the injury;
(k) The prognosis for recovery; and
(l) All other material findings.
Sec. 10.331 How and when should the medical report be submitted?
(a) Form CA-16 may be used for the initial medical report; Form CA-
20 may be used for the initial report and for subsequent reports; and
Form CA-20a may be used where continued compensation is claimed. Use of
medical report forms is not required, however. The report may also be
made in narrative form on the physician's letterhead stationery. The
report should bear the physician's signature or signature stamp. OWCP
may require an original signature on the report.
(b) The report shall be submitted directly to OWCP as soon as
possible after medical examination or treatment is received, either by
the employee or the physician. (See also Sec. 10.210.) The employer
may request a copy of the report from OWCP. The employer should use
Form CA-17 to obtain interim reports concerning the duty status of an
employee with a disabling injury.
Sec. 10.332 What additional medical information will OWCP require to
support continuing payment of benefits?
In all cases of serious injury or disease, especially those
requiring hospital treatment or prolonged care, OWCP will request
detailed narrative reports from the attending physician at periodic
intervals. The physician will be asked to describe continuing medical
treatment for the condition accepted by OWCP, a prognosis, a
description of work limitations, if any, and the physician's opinion as
to the continuing causal relationship between the employee's condition
and factors of his or her Federal employment.
Sec. 10.333 What additional medical information will OWCP require to
support a claim for a schedule award?
To support a claim for a schedule award, a medical report must
contain accurate measurements of the function of the organ or member,
in accordance with the American Medical Association's Guides to the
Evaluation
[[Page 37919]]
of Permanent Impairment as described in Sec. 10.404. These
measurements may include: The actual degree of loss of active or
passive motion or deformity; the amount of atrophy; the decrease, if
any, in strength; the disturbance of sensation; pain due to nerve
impairment; the diagnosis of the condition; and functional impairment
ratings.
Medical Bills
Sec. 10.335 How are medical bills submitted?
Usually, medical providers submit bills directly to OWCP or to a
bill processing agent designated by OWCP. The rules for submitting and
paying bills are stated in subpart I of this part. An employee claiming
reimbursement of medical expenses should submit an itemized bill as
described in Sec. 10.802.
Sec. 10.336 What are the time frames for submitting bills?
To be considered for payment, bills must be submitted by the end of
the calendar year after the year when the expense was incurred, or by
the end of the calendar year after the year when OWCP first accepted
the claim as compensable, whichever is later.
Sec. 10.337 If an employee is only partially reimbursed for a medical
expense, must the provider refund the balance of the amount paid to the
employee?
(a) The OWCP fee schedule sets maximum limits on the amounts
payable for many services (see Sec. 10.805). The employee may be only
partially reimbursed for medical expenses because the amount he or she
paid to the medical provider for a service exceeds the maximum
allowable charge set by the OWCP fee schedule.
(b) If this happens, OWCP shall advise the employee of the maximum
allowable charge for the service in question and of his or her
responsibility to ask the provider to refund to the employee, or credit
to the employee's account, the amount he or she paid which exceeds the
maximum allowable charge. The provider may request reconsideration of
the fee determination as set forth in Sec. Sec. 10.812 and 10.813.
(c) If the provider does not refund to the employee or credit to
his or her account the amount of money paid in excess of the charge
which OWCP allows, the employee should submit documentation of the
attempt to obtain such refund or credit to OWCP. OWCP may make
reasonable reimbursement to the employee after reviewing the facts and
circumstances of the case.
Subpart E--Compensation and Related Benefits
Compensation for Disability and Impairment
Sec. 10.400 What is total disability?
(a) Permanent total disability is presumed to result from the loss
of use of both hands, both arms, both feet, or both legs, or the loss
of sight of both eyes. 5 U.S.C. 8105(b). However, the presumption of
permanent total disability as a result of such loss may be rebutted by
evidence to the contrary, such as evidence of continued ability to work
and to earn wages despite the loss.
(b) Temporary total disability is defined as the inability to
return to the position held at the time of injury or earn equivalent
wages, or to perform other gainful employment, due to the work-related
injury. Except as presumed under paragraph (a) of this section, an
employee's disability status is always considered temporary pending
return to work.
Sec. 10.401 When and how is compensation for total disability paid?
(a) Compensation is payable when an employee starts to lose pay if
the injury causes permanent disability or if pay loss continues for
more than 14 calendar days. Otherwise, compensation is payable on the
fourth day after pay stops pursuant to 5 U.S.C. 8117(a). Compensation
may not be paid while an injured employee is in a continuation of pay
status or receives pay for leave or, for Postal Service employees, for
the first three days of temporary disability as described in 5 U.S.C.
8117(b) and Sec. 10.200(c), except for medical or vocational
rehabilitation benefits.
(b) Compensation for total disability is payable at the rate of
66\2/3\ percent of the pay rate if the employee has no dependents, or
75 percent of the pay rate if the employee has at least one dependent.
(``Dependents'' are defined at 5 U.S.C. 8110(a).)
Sec. 10.402 What is partial disability?
An injured employee who cannot return to the position held at the
time of injury (or earn equivalent wages) due to the work-related
injury, but who is not totally disabled for all gainful employment, is
considered to be partially disabled.
Sec. 10.403 When and how is compensation for partial disability paid?
(a) 5 U.S.C. 8115 outlines how compensation for partial disability
is determined. If the employee has actual earnings which fairly and
reasonably represent his or her wage-earning capacity, those earnings
will form the basis for payment of compensation for partial disability.
(See Sec. Sec. 10.500 through 10.521 concerning return to work.) If
the employee's actual earnings do not fairly and reasonably represent
his or her wage-earning capacity, or if the employee has no actual
earnings, OWCP uses the factors stated in 5 U.S.C. 8115 to select a
position which represents his or her wage-earning capacity, which
include the nature of the injury, the degree of physical impairment,
the usual employment, the age of the employee, the employee's
qualifications for other employment and the availability of suitable
employment. However, OWCP will not secure employment for the employee
in the position selected for establishing a wage-earning capacity.
(b) Compensation for partial disability is payable as a percentage
of the difference between the employee's pay rate for compensation
purposes and the employee's wage-earning capacity. The percentage is
66\2/3\ percent of this difference if the employee has no dependents,
or 75 percent of this difference if the employee has at least one
dependent.
(c) The formula which OWCP uses to compute the compensation payable
for partial disability employs the following terms: Pay rate for
compensation purposes, which is defined in Sec. 10.5(s) of this part;
current pay rate, which means the salary or wages for the job held at
the time of injury at the time of the determination; and earnings,
which means the employee's actual earnings, or the salary or pay rate
of the position selected by OWCP as representing the employee's wage-
earning capacity.
(d) The employee's wage-earning capacity in terms of percentage is
computed by dividing the employee's earnings by the current pay rate.
The comparison of earnings and ``current'' pay rate for the job held at
the time of injury need not be made as of the beginning of partial
disability. OWCP may use any convenient date for making the comparison
as long as both wage rates are in effect on the date used for
comparison.
(e) The employee's wage-earning capacity in terms of dollars is
computed by first multiplying the pay rate for compensation purposes by
the percentage of wage-earning capacity. The resulting dollar amount is
then subtracted from the pay rate for compensation purposes to obtain
the employee's loss of wage-earning capacity.
[[Page 37920]]
Sec. 10.404 When and how is compensation for a schedule impairment
paid?
Compensation is provided for specified periods of time for the
permanent loss or loss of use of certain members, organs and functions
of the body. Such loss or loss of use is known as permanent impairment.
Compensation for proportionate periods of time is payable for partial
loss or loss of use of each member, organ or function. 5 U.S.C.
8107(b)(19). OWCP evaluates the degree of impairment to schedule
members, organs and functions as defined in 5 U.S.C. 8107 according to
the standards set forth in the specified (by OWCP) edition of the
American Medical Association's Guides to the Evaluation of Permanent
Impairment.
(a) 5 U.S.C. 8107(c) provides compensation for loss to the
following list of schedule members:
------------------------------------------------------------------------
Member Weeks
------------------------------------------------------------------------
Arm............................................................. 312
Leg............................................................. 288
Hand............................................................ 244
Foot............................................................ 205
Eye............................................................. 160
Thumb........................................................... 75
First Finger lost............................................... 46
Great toe....................................................... 38
Second finger................................................... 30
Third finger.................................................... 25
Toe other than great toe........................................ 16
Fourth finger................................................... 15
Hearing, one ear................................................ 52
Hearing, both ears.............................................. 200
------------------------------------------------------------------------
(b) Pursuant to the authority provided by 5 U.S.C. 8107(c)(22),
the Secretary has added the following organs to the compensation
schedule for injuries that were sustained on or after September 7,
1974, except that a schedule award for the skin may be paid for
injuries on or after September 11, 2001:
------------------------------------------------------------------------
Member Weeks
------------------------------------------------------------------------
Breast (one).................................................... 52
Kidney (one).................................................... 156
Larynx.......................................................... 160
Lung (one)...................................................... 156
Penis........................................................... 205
Testicle (one).................................................. 52
Tongue.......................................................... 160
Ovary (one)..................................................... 52
Uterus/cervix and vulva/vagina.................................. 205
Skin............................................................ 205
------------------------------------------------------------------------
(c) Compensation for schedule awards is payable at 66\2/3\ percent
of the employee's pay, or 75 percent of the pay when the employee has
at least one dependent.
(d) The period of compensation payable under 5 U.S.C. 8107(c) shall
be reduced by the period of compensation paid or payable under the
schedule for an earlier injury if:
(1) Compensation in both cases is for impairment of the same member
or function or different parts of the same member or function, or for
disfigurement; and
(2) OWCP finds that compensation payable for the later impairment
in whole or in part would duplicate the compensation payable for the
pre-existing impairment.
(e) Compensation not to exceed $3,500 may be paid for serious
disfigurement of the face, head or neck which is likely to handicap a
person in securing or maintaining employment. Under 5 U.S.C. 8107(21),
a disfigurement award may be paid concurrently with schedule awards.
Sec. 10.405 Who is considered a dependent in a claim based on
disability or impairment?
(a) Dependents include a wife or husband; an unmarried child under
18 years of age; an unmarried child over 18 who is incapable of self-
support; a student, until he or she reaches 23 years of age or
completes four years of school beyond the high school level; or a
wholly dependent parent.
(b) Augmented compensation payable for an unmarried child, which
would otherwise terminate when the child reached the age of 18, may be
continued while the child is a student as defined in 5 U.S.C. 8101(17).
Sec. 10.406 What are the maximum and minimum rates of compensation in
disability cases?
(a) Compensation for total or partial disability may not exceed 75
percent of the basic monthly pay of the highest step of grade 15 of the
General Schedule. (Basic monthly pay does not include locality
adjustments.) However, this limit does not apply to disability
sustained in the performance of duty which was due to an assault which
occurred during an attempted assassination of a Federal official
described under 18 U.S.C. 351(a) or 1751(a).
(b) Compensation for total disability may not be less than 75
percent of the basic monthly pay of the first step of grade 2 of the
General Schedule or actual pay, whichever is less. (Basic monthly pay
does not include locality adjustments.)
Compensation for Death
Sec. 10.410 Who is entitled to compensation in case of death, and
what are the rates of compensation payable in death cases?
(a) Pursuant to 5 U.S.C. 8133, benefits may be paid to eligible
dependents of an employee whose death results from an injury sustained
in the performance of duty. This benefit is separate and distinct from
a death gratuity benefit under 5 U.S.C. 8102a and subpart J of this
part.
(b) If there is no child entitled to compensation, the employee's
surviving spouse will receive compensation equal to 50 percent of the
employee's monthly pay until death or remarriage before reaching age
55. Upon remarriage, the surviving spouse will be paid a lump sum equal
to 24 times the monthly compensation payment (excluding compensation
payable on account of another individual) to which the surviving spouse
was entitled immediately before the remarriage. If remarriage occurs at
age 55 or older, the lump-sum payment will not be paid and compensation
will continue until death.
(c) If there is a child entitled to compensation, the compensation
for the surviving spouse will equal 45 percent of the employee's
monthly pay plus 15 percent for each child, but the total percentage
may not exceed 75 percent.
(d) If there is a child entitled to compensation and no surviving
spouse, compensation for one child will equal 40 percent of the
employee's monthly pay. Fifteen percent will be awarded for each
additional child, not to exceed 75 percent, the total amount to be
shared equally among all children.
(e) If there is no child or surviving spouse entitled to
compensation, the parents will receive compensation equal to 25 percent
of the employee's monthly pay if one parent was wholly dependent on the
employee at the time of death and the other was not dependent to any
extent, or 20 percent each if both were wholly dependent on the
employee, or a proportionate amount in the discretion of the Director
if one or both were partially dependent on the employee. If there is a
child or surviving spouse entitled to compensation, the parents will
receive so much of the compensation described in the preceding sentence
as, when added to the total percentages payable to the surviving spouse
and children, will not exceed a total of 75 percent of the employee's
monthly pay.
(f) If there is no child, surviving spouse or dependent parent
entitled to compensation, the brothers, sisters, grandparents and
grandchildren will receive compensation equal to 20 percent of the
employee's monthly pay to such dependent if one was wholly dependent on
the employee at the time of death; or 30 percent if more than one was
wholly dependent, divided among such dependents equally; or 10 percent
if no one was wholly dependent but one or more was partly dependent,
divided
[[Page 37921]]
among such dependents equally. If there is a child, surviving spouse or
dependent parent entitled to compensation, the brothers, sisters,
grandparents and grandchildren will receive so much of the compensation
described in the preceding sentence as, when added to the total
percentages payable to the children, surviving spouse and dependent
parents, will not exceed a total of 75 percent of the employee's
monthly pay.
(g) A child, brother, sister or grandchild may be entitled to
receive death benefits until death, marriage, or reaching age 18.
Regarding entitlement after reaching age 18, refer to Sec. 10.417.
Sec. 10.411 What are the maximum and minimum rates of compensation in
death cases?
(a) Compensation for death may not exceed the employee's pay or 75
percent of the basic monthly pay of the highest step of grade 15 of the
General Schedule, except that compensation may exceed the employee's
basic monthly pay if such excess is created by authorized cost-of-
living increases. (Basic monthly pay does not include locality
adjustments.) However, the maximum limit does not apply when the death
occurred during an assassination of a Federal official described under
18 U.S.C. 351(a) or 18 U.S.C. 1751(a).
(b) Compensation for death is computed on a minimum pay rate equal
to the basic monthly pay of an employee at the first step of grade 2 of
the General Schedule. (Basic monthly pay does not include locality
adjustments.)
Sec. 10.412 Will OWCP pay the costs of burial and transportation of
the remains?
In a case accepted for death benefits, OWCP will pay up to $800 for
funeral and burial expenses. When an employee's home is within the
United States and the employee dies outside the United States, or away
from home or the official duty station, an additional amount may be
paid for transporting the remains to the employee's home as set forth
in 5 U.S.C. 8134. An additional amount of $200 is paid to the personal
representative of the decedent for reimbursement of the costs of
terminating the decedent's status as an employee of the United States
in accordance with 5 U.S.C. 8133.
Sec. 10.413 May a schedule award be paid after an employee's death?
For a schedule award to be paid following the death of an employee,
the employee must have filed a valid claim specifically for a schedule
award prior to death; in addition, the employee must have died from a
cause other than the injury before the end of the period specified in
the schedule. The balance of the schedule award may be paid to an
employee's survivors pursuant to the proportions and order of
precedence described in 5 U.S.C. 8109.
Sec. 10.414 What reports of dependents are needed in death cases?
If a beneficiary is receiving compensation benefits on account of
an employee's death, OWCP will ask him or her to complete a report once
each year on Form CA-12. The report requires the beneficiary to note
changes in marital status and dependents. If the beneficiary fails to
submit the form (or an equivalent written statement) within 30 days of
the date of request, OWCP shall suspend compensation until the
requested form or equivalent written statement is received. The
suspension will include compensation payable for or on behalf of
another person (for example, compensation payable to a widow on behalf
of a child). When the form or statement is received, compensation will
be reinstated at the appropriate rate retroactive to the date of
suspension, provided the beneficiary is entitled to such compensation.
Sec. 10.415 What must a beneficiary do if the number of beneficiaries
decreases?
The circumstances under which compensation on account of death
shall be terminated are described in 5 U.S.C. 8133(b). A beneficiary in
a claim for death benefits should promptly notify OWCP of any event
which would affect his or her entitlement to continued compensation.
The terms ``marriage'' and ``remarriage'' include common-law marriage
as recognized and defined by State law in the State where the
beneficiary resides. If a beneficiary, or someone acting on his or her
behalf, receives a check or electronic payment which includes payment
of compensation for any period after the date when entitlement ended,
he or she must promptly return such funds to OWCP.
Sec. 10.416 How does a change in the number of beneficiaries affect
the amount of compensation paid to the other beneficiaries?
If compensation to a beneficiary is terminated, the amount of
compensation payable to one or more of the remaining beneficiaries may
be reapportioned. Similarly, the birth of a posthumous child may result
in a reapportionment of the amount of compensation payable to other
beneficiaries. The parent, or someone acting on the child's behalf,
shall promptly notify OWCP of the birth and submit a copy of the birth
certificate.
Sec. 10.417 What reports are needed when compensation payments
continue for children over age 18?
(a) Compensation payable on behalf of a child, brother, sister, or
grandchild, which would otherwise end when the person reaches 18 years
of age, shall be continued if and for so long as he or she is not
married and is either a student as defined in 5 U.S.C. 8101(17), or
physically or mentally incapable of self-support.
(b) At least once each year, OWCP will ask a beneficiary receiving
compensation based on the student status of a dependent to provide
proof of continuing entitlement to such compensation, including
certification of school enrollment. The beneficiary is required to
report any changes to student status in the interim.
(c) Likewise, at least once each year unless otherwise provided in
paragraph (d) of this section, OWCP will ask a beneficiary or legal
guardian receiving compensation based on a dependent's physical or
mental inability to support himself or herself to submit a medical
report verifying that the dependent's medical condition persists and
that it continues to preclude self-support. If there is a change in
that condition, the beneficiary or legal guardian is required to
immediately report that change to OWCP.
(d) In the case of a dependent incapable of self support due to
that dependent's physical or mental disability where the status of that
dependent is unlikely to change, a beneficiary or legal guardian may
establish the permanency of that condition by submitting a well
rationalized medical report which describes that condition and the
ongoing prognosis of that condition. If the permanency of that
condition is established by such a report, OWCP will not seek further
information regarding that condition; however, if there is a change in
that condition, the beneficiary or legal guardian is required to
immediately report that change to OWCP.
Adjustments to Compensation
Sec. 10.420 How are cost-of-living adjustments applied?
(a) In cases of disability, a beneficiary is eligible for cost-of-
living adjustments under 5 U.S.C. 8146a where injury-related disability
began more than one year prior to the date the cost-of-living
adjustment took effect. The employee's use of continuation of pay as
provided by 5 U.S.C. 8118, or of sick or annual leave, during any part
of the period of disability does not affect the computation of the one-
year period.
[[Page 37922]]
(b) Where an injury does not result in disability but compensation
is payable for permanent impairment of a covered member, organ or
function of the body, a beneficiary is eligible for cost-of-living
adjustments under 5 U.S.C. 8146a where the award for such impairment
began more than one year prior to the date the cost-of-living
adjustment took effect.
(c) In cases of recurrence of disability, where the pay rate for
compensation purposes is the pay rate at the time disability recurs, a
beneficiary is eligible for cost-of-living adjustments under 5 U.S.C.
8146a where the effective date of that pay rate began more than one
year prior to the date the cost-of-living adjustment took effect.
(d) In cases of death, entitlement to cost-of-living adjustments
under 5 U.S.C. 8146a begins with the first such adjustment occurring
more than one year after the date of death. However, if the death was
preceded by a period of injury-related disability, compensation payable
to the survivors will be increased by the same percentages as the cost-
of-living adjustments paid or payable to the deceased employee for the
period of disability, as well as by subsequent cost-of-living
adjustments to which the survivors would otherwise be entitled.
Sec. 10.421 May a beneficiary receive other kinds of payments from
the Federal Government concurrently with compensation?
(a) 5 U.S.C. 8116(a) provides that a beneficiary may not receive
wage-loss compensation concurrently with a Federal retirement or
survivor annuity. The beneficiary must elect the benefit that he or she
wishes to receive, and the election, once made, is revocable.
(b) An employee may receive compensation concurrently with military
retired pay, retirement pay, retainer pay or equivalent pay for service
in the Armed Forces or other uniformed services.
(c) An employee may not receive compensation for total disability
concurrently with severance pay or separation pay. However, an employee
may concurrently receive compensation for partial disability or
permanent impairment to a schedule member, organ or function with
severance pay or separation pay.
(d) Pursuant to 5 U.S.C. 8116(d), a beneficiary may receive
compensation under the FECA for either the death or disability of an
employee concurrently with benefits under title II of the Social
Security Act on account of the age or death of such employee. However,
this provision of the FECA also requires OWCP to reduce the amount of
any such compensation by the amount of any Social Security Act benefits
that are attributable to the Federal service of the employee.
(e) To determine the employee's entitlement to compensation, OWCP
may require an employee to submit an affidavit or statement as to the
receipt of any Federally funded or Federally assisted benefits. If an
employee fails to submit such affidavit or statement within 30 days of
the date of the request, his or her right to compensation shall be
suspended until such time as the requested affidavit or statement is
received. At that time compensation will be reinstated retroactive to
the date of suspension provided the employee is entitled to such
compensation.
Sec. 10.422 May compensation payments be issued in a lump sum?
(a) In exercise of the discretion afforded under 5 U.S.C. 8135(a),
OWCP has determined that lump-sum payments will not be made to persons
entitled to wage-loss benefits (that is, those payable under 5 U.S.C.
8105 and 8106). Therefore, when OWCP receives requests for lump-sum
payments for wage-loss benefits, OWCP will not exercise further
discretion in the matter. This determination is based on several
factors, including:
(1) The purpose of the FECA, which is to replace lost wages;
(2) The prudence of providing wage-loss benefits on a regular,
recurring basis; and
(3) The high cost of the long-term borrowing that is needed to pay
out large lump sums.
(b) However, a lump-sum payment may be made to an employee entitled
to a schedule award under 5 U.S.C. 8107 where OWCP determines that such
a payment is in the employee's best interest. Lump-sum payments of
schedule awards generally will be considered in the employee's best
interest only where the employee does not rely upon compensation
payments as a substitute for lost wages (that is, the employee is
working or is receiving annuity payments). An employee possesses no
absolute right to a lump-sum payment of benefits payable under 5 U.S.C.
8107.
(c) Lump-sum payments to surviving spouses are addressed in 5
U.S.C. 8135(b); payments to beneficiaries under 5 U.S.C. 8137 payable
as a lump sum pursuant to 5 U.S.C. 8135 are addressed in part 25 of
this title.
Sec. 10.423 May compensation payments be assigned to, or attached by,
creditors?
(a) As a general rule, compensation and claims for compensation are
exempt from the claims of private creditors. Further, any attempt by a
FECA beneficiary to assign his or her claim is null and void. However,
pursuant to provisions of the Social Security Act, 42 U.S.C. 659, and
regulations issued by the Office of Personnel Management (OPM) at 5 CFR
part 581, FECA benefits, including survivor's benefits, may be
garnished to collect overdue alimony and child support payments.
(b) Garnishment for child support and alimony may be requested by
providing a copy of the State agency or court order to the district
office handling the FECA claim.
Sec. 10.424 May someone other than the beneficiary be designated to
receive compensation payments?
A beneficiary may be incapable of managing or directing the
management of his or her benefits because of a mental or physical
disability, or because of legal incompetence, or because he or she is
under 18 years of age. In this situation, absent the appointment of a
guardian or other party to manage the financial affairs of the claimant
by a court or administrative body authorized to do so, OWCP in its sole
discretion may approve a person to serve as the representative payee
for funds due the beneficiary. Where a guardian or other party has been
appointed by a court or administrative body authorized to do so to
manage the financial affairs of the claimant, OWCP will recognize that
individual as the representative payee.
Sec. 10.425 May compensation be claimed for periods of restorable
leave?
The employee may claim compensation for periods of annual and sick
leave which are restorable in accordance with the rules of the
employing agency. Forms CA-7a and CA-7b are used for this purpose.
Leave donated to an employee by an employing agency leave bank is not
restorable leave.
Overpayments
Sec. 10.430 How does OWCP notify an individual of a payment made?
(a) In addition to providing narrative descriptions to recipients
of benefits paid or payable, OWCP includes on each periodic check a
clear indication of the period for which payment is being made. A form
is sent to the recipient with each supplemental check which states the
date and amount of the payment and the period for which payment is
being made. For payments sent by electronic funds transfer (EFT), a
notification of the date and amount of payment appears on the statement
from the recipient's financial institution.
[[Page 37923]]
(b) By these means, OWCP puts the recipient on notice that a
payment was made and the amount of the payment. If the amount received
differs from the amount indicated on the written notice or bank
statement, the recipient is responsible for notifying OWCP of the
difference. Absent affirmative evidence to the contrary, the
beneficiary will be presumed to have received the notice of payment,
whether mailed or transmitted electronically. For EFT payments, OWCP is
entitled to presume receipt and acceptance of that payment once a
recipient has had an opportunity to receive a statement from their
financial institution.
Sec. 10.431 What does OWCP do when an overpayment is identified?
Before seeking to recover an overpayment or adjust benefits, OWCP
will advise the beneficiary in writing that:
(a) The overpayment exists, and the amount of overpayment;
(b) A preliminary finding shows either that the individual was or
was not at fault in the creation of the overpayment;
(c) He or she has the right to inspect and copy Government records
relating to the overpayment; and
(d) He or she has the right to present evidence which challenges
the fact or amount of the overpayment, and/or challenges the
preliminary finding that he or she was at fault in the creation of the
overpayment. He or she may also request that recovery of the
overpayment be waived.
Sec. 10.432 How can an individual present evidence to OWCP in
response to a preliminary notice of an overpayment?
The individual may present this evidence to OWCP in writing or at a
pre-recoupment hearing. The evidence must be presented or the hearing
requested within 30 days of the date of the written notice of
overpayment. Failure to request the hearing within this 30-day time
period shall constitute a waiver of that right.
Sec. 10.433 Under what circumstances can OWCP waive recovery of an
overpayment?
(a) OWCP may consider waiving an overpayment only if the individual
to whom it was made was not at fault in accepting or creating the
overpayment. Each recipient of compensation benefits is responsible for
taking all reasonable measures to ensure that payments he or she
receives from OWCP are proper. The recipient must show good faith and
exercise a high degree of care in regard to receipt of their benefits.
Such care includes reporting events which may affect entitlement to or
the amount of benefits, including reviewing their accounts and related
statements (including electronic statements and records from their
financial institutions involving EFT payments). A recipient who has
done any of the following will be found to be at fault with respect to
creating an overpayment:
(1) Made an incorrect statement as to a material fact which he or
she knew or should have known to be incorrect; or
(2) Failed to provide information which he or she knew or should
have known to be material; or
(3) Accepted a payment which the recipient knew or should have
known to be incorrect. (This provision applies only to the overpaid
individual.)
(b) Whether or not OWCP determines that an individual was at fault
with respect to the creation of an overpayment depends on the
circumstances surrounding the overpayment. The degree of care expected
may vary with the complexity of those circumstances and the
individual's capacity to realize that he or she is being overpaid.
Sec. 10.434 If OWCP finds that the recipient of an overpayment was
not at fault, what criteria are used to decide whether to waive
recovery of it?
If OWCP finds that the recipient of an overpayment was not at
fault, repayment will still be required unless:
(a) Adjustment or recovery of the overpayment would defeat the
purpose of the FECA (see Sec. 10.436), or
(b) Adjustment or recovery of the overpayment would be against
equity and good conscience (see Sec. 10.437).
Sec. 10.435 Is an individual responsible for an overpayment that
resulted from an error made by OWCP or another Government agency?
(a) The fact that OWCP may have erred in making the overpayment, or
that the overpayment may have resulted from an error by another
Government agency, does not by itself relieve the individual who
received the overpayment from liability for repayment if the individual
also was at fault in accepting the overpayment.
(b) However, OWCP may find that the individual was not at fault if
failure to report an event affecting compensation benefits, or
acceptance of an incorrect payment, occurred because:
(1) The individual relied on misinformation given in writing by
OWCP (or by another Government agency which he or she had reason to
believe was connected with the administration of benefits) as to the
interpretation of a pertinent provision of the FECA or its regulations;
or
(2) OWCP erred in calculating cost-of-living increases, schedule
award length and/or percentage of impairment, or loss of wage-earning
capacity.
Sec. 10.436 Under what circumstances would recovery of an overpayment
defeat the purpose of the FECA?
Recovery of an overpayment will defeat the purpose of the FECA if
such recovery would cause hardship to a currently or formerly entitled
beneficiary because:
(a) The beneficiary from whom OWCP seeks recovery needs
substantially all of his or her current income (including compensation
benefits) to meet current ordinary and necessary living expenses; and
(b) The beneficiary's assets do not exceed a specified amount as
determined by OWCP from data furnished by the Bureau of Labor
Statistics. A higher amount is specified for a beneficiary with one or
more dependents.
Sec. 10.437 Under what circumstances would recovery of an overpayment
be against equity and good conscience?
(a) Recovery of an overpayment is considered to be against equity
and good conscience when any individual who received an overpayment
would experience severe financial hardship in attempting to repay the
debt.
(b) Recovery of an overpayment is also considered to be against
equity and good conscience when any individual, in reliance on such
payments or on notice that such payments would be made, gives up a
valuable right or changes his or her position for the worse. In making
such a decision, OWCP does not consider the individual's current
ability to repay the overpayment.
(1) To establish that a valuable right has been relinquished, it
must be shown that the right was in fact valuable, that it cannot be
regained, and that the action was based chiefly or solely in reliance
on the payments or on the notice of payment. Donations to charitable
causes or gratuitous transfers of funds to other individuals are not
considered relinquishments of valuable rights.
(2) To establish that an individual's position has changed for the
worse, it must be shown that the decision made would not otherwise have
been made but for the receipt of benefits, and that this decision
resulted in a loss.
Sec. 10.438 Can OWCP require the individual who received the
overpayment to submit additional financial information?
(a) The individual who received the overpayment is responsible for
[[Page 37924]]
providing information about income, expenses and assets as specified by
OWCP. This information is needed to determine whether or not recovery
of an overpayment would defeat the purpose of the FECA, or be against
equity and good conscience. This information will also be used to
determine the repayment schedule, if necessary.
(b) Failure to submit the requested information within 30 days of
the request shall result in denial of waiver, and no further request
for waiver shall be considered until the requested information is
furnished.
Sec. 10.439 What is addressed at a pre-recoupment hearing?
At a pre-recoupment hearing, the OWCP representative will consider
all issues in the claim on which a formal decision has been issued.
Such a hearing will thus fulfill OWCP's obligation to provide pre-
recoupment rights and a hearing under 5 U.S.C. 8124(b). Pre-recoupment
hearings shall be conducted in exactly the same manner as provided in
Sec. 10.615 through Sec. 10.622.
Sec. 10.440 How does OWCP communicate its final decision concerning
recovery of an overpayment, and what appeal right accompanies it?
(a) OWCP will send a copy of the final decision to the individual
from whom recovery is sought; his or her representative, if any; and
the employing agency.
(b) The only review of a final decision concerning an overpayment
is to the Employees' Compensation Appeals Board. The provisions of 5
U.S.C. 8124(b) (concerning hearings) and 5 U.S.C. 8128(a) (concerning
reconsiderations) do not apply to such a decision. The pendency of an
appeal with ECAB has no effect on the finality of the order being
appealed; in the event ECAB reverses the final overpayment decision,
any monies collected will be restored to the beneficiary.
Sec. 10.441 How are overpayments collected?
(a) When an overpayment has been made to an individual who is
entitled to further payments, the individual shall refund to OWCP the
amount of the overpayment as soon as the error is discovered or his or
her attention is called to same. If no refund is made, OWCP shall
decrease later payments of compensation, taking into account the
probable extent of future payments, the rate of compensation, the
financial circumstances of the individual, and any other relevant
factors, so as to minimize any hardship. Should the individual die
before collection has been completed, collection shall be made by
decreasing later payments, if any, payable under the FECA with respect
to the individual's death. If no further benefits are payable with
respect to the individual's death, OWCP may also file a claim with the
estate of the individual or seek repayment of the overpayment through
other means including referral of the debt to the Treasury Department.
(b) When an overpayment has been made to an individual who is not
entitled to further payments, the individual shall refund to OWCP the
amount of the overpayment as soon as the error is discovered or his or
her attention is called to same. The overpayment is subject to the
provisions of the Federal Claims Collection Act of 1966 (as amended)
and may be reported to the Internal Revenue Service as income. If the
individual fails to make such refund, OWCP may recover the same through
any available means, including offset of salary, annuity benefits, or
other Federal payments, including tax refunds as authorized by the Tax
Refund Offset Program, or referral of the debt to a collection agency
or to the Department of Justice.
Subpart F--Continuing Benefits
Rules and Evidence
Sec. 10.500 What are the basic rules governing continuing receipt of
compensation benefits and return to work?
(a) Benefits are available only while the effects of a work-related
condition continue. Compensation for wage loss due to disability is
available only for any periods during which an employee's work-related
medical condition prevents him or her from earning the wages earned
before the work-related injury. For example, an employee is not
entitled to compensation for any wage-loss claimed on a CA-7 to the
extent that evidence contemporaneous with the period claimed on a CA-7
establishes that an employee had medical work restrictions in place;
that light duty within those work restrictions was available; and that
the employee was previously notified in writing that such duty was
available. Similarly, an employee receiving continuing periodic
payments for disability was not prevented from earning the wages earned
before the work-related injury if the evidence establishes that the
employing agency had offered, in accordance with OWCP procedures, a
temporary light duty assignment within the employee's work
restrictions. (The penalty provision of 5 U.S.C. 8106(c)(2) will not be
imposed on such assignments under this paragraph.)
(b) Each disabled employee is obligated to perform such work as he
or she can. OWCP's goal is to return each disabled employee to work as
soon as he or she is medically able. In determining what work qualifies
under 5 U.S.C. 8115 for determining the wage-earning capacity for a
particular disabled employee, OWCP considers all relevant factors,
including the employee's current physical limitations, whether the work
is available within the employee's demonstrated commuting area and the
employee's qualifications to perform such work.
(c) A disabled employee who refuses to seek or accept suitable
employment within the meaning of 5 U.S.C. 8106(c)(2) is not entitled to
compensation.
(d) Payment of medical benefits is available for all treatment
necessary due to a work-related medical condition.
Sec. 10.501 What medical evidence is necessary to support continuing
receipt of compensation benefits?
(a) The employee is responsible for providing sufficient medical
evidence to justify payment of any compensation sought.
(1) To support payment of continuing compensation where an employee
has been found entitled to periodic benefits, narrative medical
evidence must be submitted whenever OWCP requests it but ordinarily not
less than once a year and with any filing of a form CA-1032. It must
contain a physician's rationalized opinion as to whether the specific
period of alleged disability is causally related to the employee's
accepted injury or illness.
(2) For those employees with more serious conditions not likely to
improve and for employees over the age of 65, OWCP may require less
frequent documentation, but ordinarily not less than once every three
years.
(3) The physician's opinion must be based on the facts of the case
and the complete medical background of the employee, must be one of
reasonable medical certainty and must include objective findings in
support of its conclusions. Subjective complaints of pain are not
sufficient, in and of themselves, to support payment of continuing
compensation. Likewise, medical limitations based solely on the fear of
a possible future injury are also not sufficient to support payment of
continuing compensation. See Sec. 10.330 for a fuller discussion of
medical evidence.
(b) OWCP may require any kind of non-invasive testing to determine
the employee's functional capacity. Failure to undergo such testing
will result in a
[[Page 37925]]
suspension of benefits. In addition, OWCP may direct the employee to
undergo a second opinion or referee examination in any case it deems
appropriate (see Sec. Sec. 10.320 and 10.321).
Sec. 10.502 How does OWCP evaluate evidence in support of continuing
receipt of compensation benefits?
In considering the medical and factual evidence, OWCP will weigh
the probative value of the attending physician's report, any second
opinion physician's report, any other medical reports, or any other
evidence in the file. If OWCP determines that the medical evidence
supporting one conclusion is more consistent, logical, and well-
reasoned than evidence supporting a contrary conclusion, OWCP will use
the conclusion that is supported by the weight of the medical evidence
as the basis for awarding or denying further benefits. If medical
reports that are equally well-reasoned support inconsistent
determinations of an issue under consideration, OWCP will direct the
employee to undergo a third, impartial referee examination to resolve
the issue, which will be given special weight in determining the issue.
Sec. 10.503 Under what circumstances may OWCP reduce or terminate
compensation benefits?
Once OWCP has advised the employee that it has accepted a claim and
has either approved continuation of pay or paid medical benefits or
compensation, benefits will not be terminated or reduced unless the
weight of the evidence establishes that:
(a) The disability for which compensation was paid has ceased;
(b) The disabling condition is no longer causally related to the
employment;
(c) The employee is only partially disabled;
(d) The employee has returned to work;
(e) The beneficiary was convicted of fraud in connection with a
claim under the FECA, or the beneficiary was incarcerated based on any
felony conviction; or
(f) OWCP's initial decision was in error.
Return to Work--Employer's Responsibilities
Sec. 10.505 What actions must the employer take?
Upon authorizing medical care, the employer should advise the
employee in writing as soon as possible of his or her obligation to
return to work under Sec. 10.210 and as defined in this subpart. The
term ``return to work'' as used in this subpart is not limited to
returning to work at the employee's normal worksite or usual position,
but may include returning to work at other locations and in other
positions. In general, the employer should make all reasonable efforts
to place the employee in his or her former or an equivalent position,
in accordance with 5 U.S.C. 8151(b)(2), if the employee has fully
recovered after one year. The Office of Personnel Management (not OWCP)
administers this provision.
(a) Where the employer has specific alternative positions available
for partially disabled employees, the employer should advise the
employee in writing of the specific duties and physical requirements of
those positions.
(b) Where the employer has no specific alternative positions
available for an employee who can perform restricted or limited duties,
the employer should advise the employee of any accommodations the
agency can make to accommodate the employee's limitations due to the
injury.
Sec. 10.506 May the employer monitor the employee's medical care?
The employer may monitor the employee's medical progress and duty
status by obtaining periodic medical reports. Form CA-17 is usually
adequate for this purpose. To aid in returning an injured employee to
suitable employment, the employer may also contact the employee's
physician in writing concerning the work limitations imposed by the
effects of the injury and possible job assignments. (However, the
employer shall not contact the physician by telephone or through
personal visit.) When such contact is made, the employer shall send a
copy of any such correspondence to OWCP and the employee, as well as a
copy of the physician's response when received. The employer may also
contact the employee at reasonable intervals to request periodic
medical reports addressing his or her ability to return to work.
Sec. 10.507 How should the employer make an offer of suitable work?
Where the attending physician or OWCP notifies the employer in
writing that the employee is partially disabled (that is, the employee
can perform some work but not return to the position held at date of
injury), the employer should act as follows:
(a) If the employee can perform in a specific alternative position
available in the agency, and the employer has advised the employee in
writing of the specific duties and physical requirements, the employer
shall notify the employee in writing immediately of the date of
availability.
(b) If the employee can perform restricted or limited duties, the
employer should determine whether such duties are available or whether
an existing job can be modified. If so, the employer shall advise the
employee in writing of the duties, their physical requirements and
availability.
(c) The employer must make any job offer in writing. However, the
employer may make a job offer verbally as long as it provides the job
offer to the employee in writing within two business days of the verbal
job offer.
(d) The offer must include a description of the duties of the
position, the physical requirements of those duties, and the date by
which the employee is either to return to work or notify the employer
of his or her decision to accept or refuse the job offer. The employer
must send a complete copy of any job offer to OWCP when it is sent to
the employee.
Sec. 10.508 May relocation expenses be paid for an employee who would
need to move to accept an offer of reemployment?
If possible, the employer should offer suitable reemployment in the
location where the employee currently resides. If this is not
practical, the employer may offer suitable reemployment at the
employee's former duty station or other location. Where the distance
between the location of the offered job and the location where the
employee currently resides is at least 50 miles, OWCP may pay such
relocation expenses as are considered reasonable and necessary if the
employee has been terminated from the agency's employment rolls and
would incur relocation expenses by accepting the offered reemployment.
OWCP may also pay such relocation expenses when the new employer is
other than a Federal employer. OWCP will notify the employee that
relocation expenses are payable if it makes a finding that the job is
suitable. To determine whether a relocation expense is reasonable and
necessary, OWCP shall use as a guide the Federal travel regulations for
permanent changes of duty station.
Sec. 10.509 If an employee's light duty job is eliminated due to
downsizing, what is the effect on compensation?
In general, an employee will not be considered to have experienced
a compensable recurrence of disability as defined in Sec. 10.5(x)
merely because his or her employer has eliminated the employee's light-
duty position in a reduction-in-force or some other form of
[[Page 37926]]
downsizing. When this occurs, OWCP will determine the employee's wage-
earning capacity based on his or her actual earnings in such light-duty
position if this determination is appropriate on the basis that such
earnings fairly and reasonably represent the employee's wage-earning
capacity and such a determination has not already been made and the
employing agency has stated, in writing, that no other employment is
available.
Sec. 10.510 When may a light duty job form the basis of a loss of
wage-earning capacity determination?
A light-duty position that fairly and reasonably represents an
employee's ability to earn wages may form the basis of a loss of wage-
earning capacity determination if that light duty position is a
classified position to which the injured employee has been formally
reassigned. The position must conform to the established physical
limitations of the injured employee; the employer must have a written
position description outlining the duties and physical requirements;
and the position must correlate to the type of appointment held by the
injured employee at the time of injury. If these circumstances are
present, a determination may be made that the position constitutes
``regular'' Federal employment. In the absence of a ``light-duty
position'' as described in this paragraph, OWCP will assume that the
employee was instead engaged in non-competitive, makeshift or odd lot
employment which does not represent the employee's wage-earning
capacity, i.e., work of the type provided to injured employees who
cannot otherwise be employed by the Federal Government or in any well-
known branch of the general labor market.
Sec. 10.511 How may a loss of wage-earning capacity determination be
modified?
If OWCP issues a formal loss of wage-earning capacity
determination, including a finding of no loss of wage-earning capacity,
that determination and rate of compensation, if applicable, remains in
place until that determination is modified by OWCP. Modification of
such a determination is only warranted where the party seeking the
modification establishes either that there is a material change in the
nature and extent of the injury-related condition, the employee has
been retrained or otherwise vocationally rehabilitated, or the original
determination was erroneous. However, OWCP is not precluded from
adjudicating a limited period of disability following the issuance of a
loss of wage-earning capacity decision, such as where an employee has a
demonstrated need for surgery.
Return to Work--Employee's Responsibilities
Sec. 10.515 What actions must the employee take with respect to
returning to work?
(a) If an employee can resume regular Federal employment, he or she
must do so. No further compensation for wage loss is payable once the
employee has recovered from the work-related injury to the extent that
he or she can perform the duties of the position held at the time of
injury, or earn equivalent wages.
(b) If an employee cannot return to the job held at the time of
injury due to partial disability from the effects of the work-related
injury, but has recovered enough to perform some type of work, he or
she must seek work. In the alternative, the employee must accept
suitable work offered to him or her. This work may be with the original
employer or through job placement efforts made by or on behalf of OWCP.
(c) If the employer has advised an employee in writing that
specific alternative positions exist within the agency, the employee
shall provide the description and physical requirements of such
alternate positions to the attending physician and ask whether and when
he or she will be able to perform such duties.
(d) If the employer has advised an employee that it is willing to
accommodate his or her work limitations, the employee shall so advise
the attending physician and ask him or her to specify the limitations
imposed by the injury. The employee is responsible for advising the
employer immediately of these limitations.
(e) From time to time, OWCP may require the employee to report his
or her efforts to obtain suitable employment, whether with the Federal
Government, State and local Governments, or in the private sector.
Sec. 10.516 How will an employee know if OWCP considers a job to be
suitable?
OWCP shall advise the employee that it has found the offered work
to be suitable and afford the employee 30 days to accept the job or
present any reasons to counter OWCP's finding of suitability. If the
employee presents such reasons, and OWCP determines that the reasons
are unacceptable, it will notify the employee of that determination and
that he or she has 15 days in which to accept the offered work without
penalty. At that point in time, OWCP's notification need not state the
reasons for finding that the employee's reasons are not acceptable.
Sec. 10.517 What are the penalties for refusing to accept a suitable
job offer?
(a) 5 U.S.C. 8106(c) provides that a partially disabled employee
who refuses to seek suitable work, or refuses to or neglects to work
after suitable work is offered to or arranged for him or her, is not
entitled to compensation. An employee who refuses or neglects to work
after suitable work has been offered or secured for him or her has the
burden to show that this refusal or failure to work was reasonable or
justified.
(b) After providing the two notices described in Sec. 10.516, OWCP
will terminate the employee's entitlement to further compensation under
5 U.S.C. 8105, 8106, and 8107 on all claims where the injury occurred
prior to the termination decision, as provided by 5 U.S.C. 8106(c)(2).
However, the employee remains entitled to medical benefits as provided
by 5 U.S.C. 8103.
Sec. 10.518 Does OWCP provide services to help employees return to
work?
OWCP may, in its discretion, provide vocational rehabilitation
services as authorized by 5 U.S.C. 8104. Vocational rehabilitation
services may include vocational evaluation, testing, training, and
placement services with either the original employer or a new employer,
when the injured employee cannot return to the job held at the time of
injury. These services also include functional capacity evaluations,
which help to tailor individual rehabilitation programs to employees'
physical reconditioning and behavioral modification needs, and help
employees to meet the demands of current or potential jobs.
Sec. 10.519 What action will OWCP take if an employee refuses to
undergo vocational rehabilitation?
Under 5 U.S.C. 8104(a), OWCP may direct a permanently disabled
employee to undergo vocational rehabilitation. To ensure that
vocational rehabilitation services are available to all who might be
entitled to benefit from them, an injured employee who has a loss of
wage-earning capacity shall be presumed to be ``permanently disabled,''
for purposes of this section only, unless and until the employee proves
that the disability is not permanent. If an employee without good cause
fails or refuses to apply for, undergo, participate in, or continue to
participate in a vocational rehabilitation effort when so directed,
OWCP will act as follows:
(a) Where a suitable job has been identified, OWCP will reduce the
employee's future monetary
[[Page 37927]]
compensation based on the amount which would likely have been his or
her wage-earning capacity had he or she undergone vocational
rehabilitation. OWCP will determine this amount in accordance with the
job identified through the vocational rehabilitation planning process,
which includes meetings with the OWCP nurse and the employer. The
reduction will remain in effect until such time as the employee acts in
good faith to comply with the direction of OWCP.
(b) Where a suitable job has not been identified, because the
failure or refusal occurred in the early but necessary stages of a
vocational rehabilitation effort (that is, interviews, testing,
counseling, functional capacity evaluations, and work evaluations),
OWCP cannot determine what would have been the employee's wage-earning
capacity.
(c) Under the circumstances identified in paragraph (b) of this
section, in the absence of evidence to the contrary, OWCP will assume
that the vocational rehabilitation effort would have resulted in a
return to work with no loss of wage-earning capacity, and OWCP will
reduce the employee's monetary compensation accordingly (that is, to
zero). This reduction will remain in effect until such time as the
employee acts in good faith to comply with the direction of OWCP.
Sec. 10.520 How does OWCP determine compensation after an employee
completes a vocational rehabilitation program?
After completion of a vocational rehabilitation program, OWCP may
adjust compensation to reflect the injured worker's wage-earning
capacity. Actual earnings will be used if they fairly and reasonably
reflect the earning capacity. The position determined to be the goal of
a training plan is assumed to represent the employee's earning capacity
if it is suitable and performed in sufficient numbers so as to be
reasonably available, whether or not the employee is placed in such a
position.
Sec. 10.521 If an employee elects to receive retirement benefits
instead of FECA benefits, what effect may such an election have on that
employee's entitlement to FECA compensation?
Where an employee is undergoing vocational rehabilitation, or where
OWCP is attempting to otherwise place that employee in a suitable job,
and that employee elects to receive retirement benefits from the Office
of Personnel Management instead of benefits under the FECA, the OWCP
may proceed with a loss of wage-earning capacity determination which
may reduce FECA entitlement as long as the determination is based on
the evidence of record at the time of such election.
Reports of Earnings From Employment and Self-Employment
Sec. 10.525 What information must the employee report?
(a) An employee who is receiving compensation for partial or total
disability must advise OWCP immediately of any return to work, either
part-time or full-time. An employee must report all outside employment,
including any concurrent dissimilar employment held at the time of
injury, even if the injury did not result in any lost time in that
position. In addition, an employee who is receiving compensation for
partial or total disability will periodically be required to submit a
report of earnings from employment or self-employment, either part-time
or full-time. (See Sec. 10.5(g) for a definition of ``earnings.'')
(b) The employee must report even those earnings which do not seem
likely to affect his or her level of benefits. Many kinds of income,
though not all, will result in reduction of compensation benefits.
While earning income will not necessarily result in a reduction of
compensation, failure to report income may result in forfeiture of all
benefits paid during the reporting period.
Sec. 10.526 Must the employee report volunteer activities?
An employee who is receiving compensation for partial or total
disability is periodically required to report volunteer activity or any
other kind of activity which shows that the employee is no longer
totally disabled for work. The fact that the employee did not receive
any salary for this work is not a basis for failing to report this
activity; instead the employee must report the cost if any to have
someone else do the work or activity.
Sec. 10.527 Does OWCP verify reports of earnings?
To make proper determinations of an employee's entitlement to
benefits, OWCP may verify the earnings reported by the employee through
a variety of means, including but not limited to computer matches with
the Office of Personnel Management and inquiries to the Social Security
Administration. Also, OWCP may perform computer matches with records of
State agencies, including but not limited to workers' compensation
administrations, to determine whether private employers are paying
workers' compensation insurance premiums for recipients of benefits
under the FECA.
Sec. 10.528 What action will OWCP take if the employee fails to file
a report of activity indicating an ability to work?
OWCP periodically requires each employee who is receiving
compensation benefits to complete an affidavit as to any work, or
activity indicating an ability to work, which the employee has
performed for the prior 15 months. If an employee who is required to
file such a report fails to do so within 30 days of the date of the
request, his or her right to compensation for wage loss under 5 U.S.C.
8105 or 8106 is suspended until OWCP receives the requested report. At
that time, OWCP will reinstate compensation retroactive to the date of
suspension if the employee remains entitled to compensation.
Sec. 10.529 What action will OWCP take if the employee files an
incomplete report?
(a) If an employee knowingly omits or understates any earnings or
work activity in making a report, he or she shall forfeit the right to
compensation with respect to any period for which the report was
required. A false or evasive statement, omission, concealment, or
misrepresentation with respect to employment activity or earnings in a
report may also subject an employee to criminal prosecution.
(b) Where the right to compensation is forfeited, OWCP shall
recover any compensation already paid for the period of forfeiture
pursuant to 5 U.S.C. 8129 and other relevant statutes.
Reports of Dependents
Sec. 10.535 How are dependents defined, and what information must the
employee report?
(a) Dependents in disability cases are defined in Sec. 10.405.
While the employee has one or more dependents, the employee's basic
compensation for wage loss or for permanent impairment shall be
augmented as provided in 5 U.S.C. 8110. (The rules for death claims are
found in Sec. 10.414.)
(b) An employee who is receiving augmented compensation on account
of dependents must advise OWCP immediately of any change in the number
or status of dependents. The employee should also promptly refund to
OWCP any amounts received on account of augmented compensation after
the right to receive augmented compensation has ceased. Any difference
between actual entitlement and the amount already paid beyond the date
entitlement ended is an overpayment of compensation and may be
recovered pursuant to 5 U.S.C. 8129 and other relevant statutes.
[[Page 37928]]
(c) An employee who is receiving augmented compensation shall be
periodically required to submit a statement as to any dependents, or to
submit supporting documents such as birth or marriage certificates or
court orders, to determine if he or she is still entitled to augmented
compensation.
Sec. 10.536 What is the penalty for failing to submit a report of
dependents?
If an employee fails to submit a requested statement or supporting
document within 30 days of the date of the request, OWCP will suspend
his or her right to augmented compensation until OWCP receives the
requested statement or supporting document. At that time, OWCP will
reinstate augmented compensation retroactive to the date of suspension,
provided that the employee is entitled to receive augmented
compensation.
Sec. 10.537 What reports are needed when compensation payments
continue for children over age 18?
(a) Compensation payable on behalf of a child that would otherwise
end when the child reaches 18 years of age will continue if and for so
long as he or she is not married and is either a student as defined in
5 U.S.C. 8101(17), or physically or mentally incapable of self-support.
(b) At least once each year, OWCP will ask an employee who receives
compensation based on the student status of a child to provide proof of
continuing entitlement to such compensation, including certification of
school enrollment. The employee is required to report any changes to
student status in the interim as soon as they occur.
(c) Likewise, at least once each year, OWCP will ask an employee
who receives compensation based on a child's physical or mental
inability to support himself or herself, and who is not covered by
Sec. 10.417(d) of this part, to submit a medical report verifying that
the child's medical condition persists and that it continues to
preclude self- support. The employee is required to report any changes
to that status in the interim.
(d) If an employee fails to submit proof within 30 days of the date
of the request, OWCP will suspend the employee's right to compensation
until the requested information is received. At that time OWCP will
reinstate compensation retroactive to the date of suspension, provided
the employee is entitled to such compensation.
Reduction and Termination of Compensation
Sec. 10.540 When and how is compensation reduced or terminated?
(a) Except as provided in paragraphs (c), (d), and (e) of this
section, where the evidence establishes that compensation should be
either reduced or terminated, OWCP will provide the beneficiary with
written notice of the proposed action and give him or her 30 days to
submit relevant evidence or argument to support entitlement to
continued payment of compensation.
(b) Notice provided under this section will include a description
of the reasons for the proposed action and a copy of the specific
evidence upon which OWCP is basing its determination. Payment of
compensation will continue until any evidence or argument submitted has
been reviewed and an appropriate decision has been issued, or until 30
days have elapsed if no additional evidence or argument is submitted.
(c) OWCP will not provide such written notice when the beneficiary
has no reasonable basis to expect that payment of compensation will
continue. For example, when a claim has been made for a specific period
of time and that specific period expires, no written notice will be
given.
(d) Written notice will also not be given when a beneficiary dies,
when OWCP either reduces or terminates compensation upon an employee's
return to work, when OWCP terminates only medical benefits after a
physician indicates that further medical treatment is not necessary or
has ended, or when OWCP denies payment for a particular medical
expense.
(e) OWCP will also not provide such written notice when
compensation is terminated, suspended or forfeited due to one of the
following: A beneficiary's conviction for fraud in connection with a
claim under the FECA; a beneficiary's incarceration based on any felony
conviction; an employee's failure to report earnings from employment or
self-employment; an employee's failure or refusal to either continue
performing suitable work or to accept an offer of suitable work; or an
employee's refusal to undergo or obstruction of a directed medical
examination or treatment for substance abuse.
Sec. 10.541 What action will OWCP take after issuing written notice
of its intention to reduce or terminate compensation?
(a) If the beneficiary submits evidence or argument prior to the
issuance of the decision, OWCP will evaluate it in light of the
proposed action and undertake such further development as it may deem
appropriate, if any. Evidence or argument which is repetitious,
cumulative, or irrelevant will not require any further development. If
the beneficiary does not respond within 30 days of the written notice,
OWCP will issue a decision consistent with its prior notice. OWCP will
not grant any request for an extension of this 30-day period.
(b) Evidence or argument which refutes the evidence upon which the
proposed action was based will result in the continued payment of
compensation. If the beneficiary submits evidence or argument which
fails to refute the evidence upon which the proposed action was based
but which requires further development, OWCP will not provide the
beneficiary with another notice of its proposed action upon completion
of such development. Once any further development of the evidence is
completed, OWCP will either continue payment or issue a decision
consistent with its prior notice.
Subpart G--Appeals Process
Sec. 10.600 How can final decisions of OWCP be reviewed?
There are three methods for reviewing a formal decision of the OWCP
(Sec. Sec. 10.125 through 10.127 discuss how decisions are made).
These methods are: reconsideration by the district office; a hearing
before an OWCP hearing representative; and appeal to the Employees'
Compensation Appeals Board (ECAB). For each method there are time
limitations and other restrictions which may apply, and not all options
are available for all decisions, so the employee should consult the
requirements set forth below. Further rules governing appeals to the
ECAB are found at part 501 of this title.
Reconsiderations and Reviews by the Director
Sec. 10.605 What is reconsideration?
The FECA provides that the Director may review an award for or
against compensation upon application by an employee (or his or her
representative) who receives an adverse decision. The employee shall
exercise this right through a request to the district office. The
request, along with the supporting statements and evidence, is called
the ``application for reconsideration.''
Sec. 10.606 How does a claimant request reconsideration?
(a) An employee (or representative) seeking reconsideration should
send the application for reconsideration to the
[[Page 37929]]
address as instructed by OWCP in the final decision.
(b) The application for reconsideration, including all supporting
documents, must:
(1) Be submitted in writing;
(2) Be signed and dated by the claimant or the authorized
representative; and
(3) Set forth arguments and contain evidence that either:
(i) Shows that OWCP erroneously applied or interpreted a specific
point of law;
(ii) Advances a relevant legal argument not previously considered
by OWCP; or
(iii) Constitutes relevant and pertinent new evidence not
previously considered by OWCP.
Sec. 10.607 What is the time limit for requesting reconsideration?
(a) An application for reconsideration must be received by OWCP
within one year of the date of the OWCP decision for which review is
sought.
(b) OWCP will consider an untimely application for reconsideration
only if the application demonstrates clear evidence of error on the
part of OWCP in its most recent merit decision. The application must
establish, on its face, that such decision was erroneous.
(c) The year in which a claimant has to timely request
reconsideration shall not include any period subsequent to an OWCP
decision for which the claimant can establish through probative medical
evidence that he or she is unable to communicate in any way and that
his or her testimony is necessary in order to obtain modification of
the decision.
Sec. 10.608 How does OWCP decide whether to grant or deny the request
for reconsideration?
(a) A timely request for reconsideration may be granted if OWCP
determines that the employee has presented evidence and/or argument
that meets at least one of the standards described in Sec.
10.606(b)(3). If reconsideration is granted, the case is reopened and
the case is reviewed on its merits (see Sec. 10.609).
(b) Where the request is timely but fails to meet at least one of
the standards described in Sec. 10.606(b)(3), or where the request is
untimely and fails to present any clear evidence of error, OWCP will
deny the application for reconsideration without reopening the case for
a review on the merits. A decision denying an application for
reconsideration cannot be the subject of another application for
reconsideration. The only review for this type of non-merit decision is
an appeal to the ECAB (see Sec. 10.625), and OWCP will not entertain a
request for reconsideration or a hearing on this decision denying
reconsideration.
Sec. 10.609 How does OWCP decide whether new evidence requires
modification of the prior decision?
When application for reconsideration is granted, OWCP will review
the decision for which reconsideration is sought on the merits and
determine whether the new evidence or argument requires modification of
the prior decision.
(a) After OWCP decides to grant reconsideration, but before
undertaking the review, OWCP will send a copy of the reconsideration
application to the employer, which will have 20 days from the date sent
to comment or submit relevant documents. OWCP will provide any such
comments to the employee, who will have 20 days from the date the
comments are sent to him or her within which to comment. If no comments
are received from the employer, OWCP will proceed with the merit review
of the case. Where a reconsideration request pertains only to a medical
issue (such as disability or a schedule award) not requiring comment
from the employing agency, the employing agency will be notified that a
request for reconsideration has been received, but OWCP is not required
to wait 20 days for comment before reaching a determination, except
when that claimant is deployed in an area of armed conflict.
(b) A claims examiner who did not participate in making the
contested decision will conduct the merit review of the claim. When all
evidence has been reviewed, OWCP will issue a new merit decision, based
on all the evidence in the record. A copy of the decision will be
provided to the agency.
(c) An employee dissatisfied with this new merit decision may again
request reconsideration under this subpart or appeal to the ECAB. An
employee may not request a hearing on this decision.
Sec. 10.610 What is a review by the Director?
The FECA specifies that an award for or against payment of
compensation may be reviewed at any time on the Director's own motion.
Such review may be made without regard to whether there is new evidence
or information. If the Director determines that a review of the award
is warranted (including, but not limited to circumstances indicating a
mistake of fact or law or changed conditions), the Director (at any
time and on the basis of existing evidence) may modify, rescind,
decrease or increase compensation previously awarded, or award
compensation previously denied. A review on the Director's own motion
is not subject to a request or petition and none shall be entertained.
(a) The decision whether or not to review an award under this
section is solely within the discretion of the Director. The Director's
exercise of this discretion is not subject to review by the ECAB, nor
can it be the subject of a reconsideration or hearing request.
(b) Where the Director reviews an award on his or her own motion,
any resulting decision is subject as appropriate to reconsideration, a
hearing and/or appeal to the ECAB. Jurisdiction on review or on appeal
to ECAB is limited to a review of the merits of the resulting decision.
The Director's determination to review the award is not reviewable.
Hearings
Sec. 10.615 What is a hearing?
A hearing is a review of an adverse decision by a hearing
representative. Initially, the claimant can choose between two formats:
An oral hearing or a review of the written record. At the discretion of
the hearing representative, an oral hearing may be conducted by
telephone, teleconference, videoconference or other electronic means.
In addition to the evidence of record, the employee may submit new
evidence to the hearing representative.
Sec. 10.616 How does a claimant obtain a hearing?
(a) A claimant, injured on or after July 4, 1966, who has received
a final adverse decision by the district office may obtain a hearing by
writing to the address specified in the decision. The hearing request
must be sent within 30 days (as determined by postmark or other
carrier's date marking) of the date of the decision for which a hearing
is sought. The claimant must not have previously submitted a
reconsideration request (whether or not it was granted) on the same
decision.
(b) OWCP will schedule an oral hearing and determine whether the
oral hearing will be conducted in person, including whether the in
person hearing will be by teleconference, videoconference or other
electronic means. The claimant can request a change in the format from
a hearing to a review of the written record by making a written request
to the Branch of Hearings and Review. OWCP will grant a request
received by the Branch of Hearings and Review within 30 days of: the
date OWCP acknowledges the initial hearing request, or the date OWCP
issues a notice setting a date for an oral hearing, in cases where the
initial
[[Page 37930]]
request was for, or was treated as a request for, an oral hearing. A
request received after those dates will be subject to OWCP's
discretion. The decision to grant or deny a change of format from a
hearing to a review of the written record is not reviewable.
Sec. 10.617 How is an oral hearing conducted?
(a) The hearing representative retains complete discretion to set
the time, place and method of the hearing, including the amount of time
allotted for the hearing, considering the issues to be resolved. Any
requests for reasonable accommodation by individuals with disabilities
should be made through the procedure described in the initial
acknowledgement letter.
(b) Unless otherwise directed in writing by the claimant, the
hearing representative will mail a notice of the time, place and method
of the oral hearing to the claimant and any representative at least 30
days before the scheduled date. The employer will also be mailed a
notice at least 30 days before the scheduled date.
(c) The hearing is an informal process, and the hearing
representative is not bound by common law or statutory rules of
evidence, by technical or formal rules of procedure or by section 5 of
the Administrative Procedure Act, but the hearing representative may
conduct the hearing in such manner as to best ascertain the rights of
the claimant. During the hearing process, the claimant may state his or
her arguments and present new written evidence in support of the claim.
Hearings are limited to one hour; this limitation may be extended in
the discretion of the hearing representative.
(d) Testimony at oral hearings, including those conducted by
teleconference, videoconference or other electronic means, is recorded,
then transcribed and placed in the record. Oral testimony shall be made
under oath. The transcript of the hearing is the official record of the
hearing.
(e) OWCP will furnish a transcript of the oral hearing to the
claimant and the employer, who have 20 days from the date it is sent to
comment. The employer shall send any comments to OWCP and the claimant,
who will have 20 more days from the date of the agency's certificate of
service to comment.
(f) The hearing remains open for the submittal of additional
evidence until 30 days after the hearing is held, unless the hearing
representative, in his or her sole discretion, grants an extension.
Only one such extension may be granted. A copy of the decision will be
mailed to the claimant's last known address, to any representative, and
to the employer.
(g) The hearing representative determines the conduct of the oral
hearing and may terminate the hearing at any time he or she determines
that all relevant evidence has been obtained, or because of misbehavior
on the part of the claimant and/or representative.
(h) Pursuant to 5 U.S.C. 8126, if an individual disobeys or resists
a lawful order or process in proceedings under this part, or misbehaves
during a hearing or in a manner so as to obstruct the hearing, OWCP may
certify the facts to the appropriate U.S. District Court, which may, if
the evidence warrants, punish the individual in the same manner and to
the same extent as for a contempt committed before the court, or commit
the individual on the same conditions as if the forbidden act had
occurred with reference to the process of or in the presence of the
court.
Sec. 10.618 How is a review of the written record conducted?
(a) The hearing representative will review the official record and
any additional evidence submitted by the claimant and by the agency.
The hearing representative may also conduct whatever investigation is
deemed necessary. New evidence and arguments are to be submitted at any
time up to the time specified by OWCP, but they should be submitted as
soon as possible to avoid delaying the hearing process.
(b) The claimant should submit, with his or her application for
review, all evidence or argument that he or she wants to present to the
hearing representative. If the claimant chooses to change the request
from an oral hearing to a review of the written record, the claimant
should submit all evidence or argument at that time. A copy of all
pertinent material will be sent to the employer, which will have 20
days from the date it is sent to comment. (Medical evidence is not
considered ``pertinent'' for review and comment by the agency, and it
will therefore not be furnished to the agency. OWCP has sole
responsibility for evaluating medical evidence.) The employer shall
send any comments to OWCP and the claimant, who will have 20 more days
from the date of the agency's certificate of service to comment.
Sec. 10.619 May subpoenas be issued for witnesses and documents?
A claimant may request a subpoena, but the decision to grant or
deny such a request is within the discretion of the hearing
representative. The hearing representative may issue subpoenas for the
attendance and testimony of witnesses, and for the production of books,
records, correspondence, papers or other relevant documents. Subpoenas
are issued for documents only if they are relevant and cannot be
obtained by other means, and for witnesses only where oral testimony is
the best way to ascertain the facts.
(a) A claimant may request a subpoena only as part of the hearings
process, and no subpoena will be issued under any other part of the
claims process. To request a subpoena, the requestor must:
(1) Submit the request in writing and send it to the hearing
representative as early as possible but no later than 60 days (as
evidenced by postmark, electronic marker or other objective date mark)
after the date of the original hearing request.
(2) Explain in the original request for a subpoena why the
testimony or evidence is directly relevant to the issues at hand, and a
subpoena is the best method or opportunity to obtain such evidence
because there are no other means by which the documents or testimony
could have been obtained.
(b) No subpoena will be issued for attendance of employees of OWCP
acting in their official capacities as decision-makers or policy
administrators. For hearings taking the form of a review of the written
record, no subpoena for the appearance of witnesses will be considered.
(c) The hearing representative issues the subpoena under his or her
own name. It may be served in person or by certified mail, return
receipt requested (or equivalent service from a commercial carrier),
addressed to the person to be served at his or her last known principal
place of business or residence. A decision to deny a subpoena can only
be appealed as part of an appeal of any adverse decision which results
from the hearing.
Sec. 10.620 Who pays the costs associated with subpoenas?
(a) Witnesses who are not employees or former employees of the
Federal Government shall be paid the same fees and mileage as paid for
like services in the District Court of the United States where the
subpoena is returnable, except that expert witnesses shall be paid a
fee not to exceed the local customary fee for such services.
(b) Where OWCP asked that the witness submit evidence into the case
record or asked that the witness attend, OWCP shall pay the fees and
mileage. Where the claimant requested the subpoena, and where the
witness
[[Page 37931]]
submitted evidence into the record at the request of the claimant, the
claimant shall pay the fees and mileage.
Sec. 10.621 What is the employer's role when an oral hearing has been
requested?
(a) The employer may send one (or more, if deemed appropriate by
the hearing representative) representative(s) to observe the
proceeding, but the agency representative cannot give testimony or
argument or otherwise participate in the hearing, except where the
claimant or the hearing representative specifically asks the agency
representative to testify.
(b) The hearing representative may deny a request by the claimant
that the agency representative testify where the claimant cannot show
that the testimony would be relevant or where the agency representative
does not have the appropriate level of knowledge to provide such
evidence at the hearing. The employer may also comment on the hearing
transcript, as described in Sec. 10.617(e).
Sec. 10.622 May a claimant or representative withdraw a request for
or postpone a hearing?
(a) The claimant and/or representative may withdraw the hearing
request at any time up to and including the day the hearing is held, or
the decision issued. Withdrawing the hearing request means the record
is returned to the jurisdiction of the district office and no further
requests for a hearing on the underlying decision will be considered.
(b) OWCP will entertain any reasonable request for scheduling the
oral hearing, including whether to participate by teleconference,
videoconference or other electronic means, but such requests should be
made at the time of the original application for hearing. Scheduling
(including format) is at the sole discretion of the hearing
representative, and is not reviewable.
(c) Once the oral hearing is scheduled and OWCP has mailed
appropriate written notice to the claimant and representative, OWCP
will, upon submission of proper written documentation of unavoidable
serious scheduling conflicts (such as court-ordered appearances/trials,
jury duty or previously scheduled outpatient procedures), entertain
requests from a claimant or his representative for rescheduling as long
as the hearing can be rescheduled on the same monthly docket, generally
no more than 7 days after the originally scheduled time. When a request
to postpone a scheduled hearing under this subsection cannot be
accommodated on the docket, no further opportunity for an oral hearing
will be provided. Instead, the hearing will take the form of a review
of the written record and a decision issued accordingly.
(d) Where the claimant or representative is hospitalized for a non-
elective reason or where the death of the claimant's or
representative's parent, spouse, child or other immediate family
prevents attendance at the hearing, OWCP will, upon submission of
proper documentation, grant a postponement beyond one monthly docket.
(e) Decisions regarding rescheduling under paragraphs (b) through
(d) of this section are within the sole discretion of the hearing
representative and are not reviewable.
(f) A claimant who fails to appear at a scheduled hearing may
request in writing within 10 days after the date set for the hearing
that another hearing be scheduled. Where good cause for failure to
appear is shown, another hearing will be scheduled and conducted by
teleconference. The failure of the claimant to request another hearing
within 10 days, or the failure of the claimant to appear at the second
scheduled hearing without good cause shown, shall constitute
abandonment of the request for a hearing. Where good cause is shown for
failure to appear at the second scheduled hearing, review of the matter
will proceed as a review of the written record.
Review by the Employees' Compensation Appeals Board (ECAB)
Sec. 10.625 What kinds of decisions may be appealed?
Only final decisions of OWCP may be appealed to the ECAB. However,
certain types of final decisions, described in this part as not subject
to further review, cannot be appealed to the ECAB. Decisions that are
not appealable to the ECAB include: Decisions concerning the amounts
payable for medical services, decisions concerning exclusion and
reinstatement of medical providers, decisions by the Director to review
an award on his or her own motion, and denials of subpoenas independent
of the appeal of the underlying decision. In appeals before the ECAB,
attorneys from the Office of the Solicitor of Labor shall represent
OWCP.
Sec. 10.626 Who has jurisdiction of cases on appeal to the ECAB?
While a case is on appeal to the ECAB, OWCP has no jurisdiction
over the claim with respect to issues which directly relate to the
issue or issues on appeal. The OWCP continues to administer the claim
and retains jurisdiction over issues unrelated to the issue or issues
on appeal and issues which arise after the appeal as a result of
ongoing administration of the case. Such issues would include, for
example, the ability to terminate benefits where an individual returns
to work while an appeal is pending at the ECAB. ECAB's rules of
procedure are found at part 501 of this title.
Subpart H--Special Provisions
Representation
Sec. 10.700 May a claimant designate a representative?
(a) The claims process under the FECA is informal. Unlike many
workers' compensation laws, the employer is not a party to the claim,
and OWCP acts as an impartial evaluator of the evidence. Nevertheless,
a claimant may appoint one individual to represent his or her
interests, but the appointment must be in writing.
(b) There can be only one representative at any one time, so after
one representative has been properly appointed, OWCP will not recognize
another individual as representative until the claimant withdraws the
authorization of the first individual. In addition, OWCP will recognize
only certain types of individuals (see Sec. 10.701); however if the
representative is an attorney, OWCP may communicate with any member of
that attorney's recognized law firm.
(c) A properly appointed representative who is recognized by OWCP
may make a request or give direction to OWCP regarding the claims
process, including a hearing. This authority includes presenting or
eliciting evidence, making arguments on facts or the law, and obtaining
information from the case file, to the same extent as the claimant.
Sec. 10.701 Who may serve as a representative?
A claimant may authorize any individual to represent him or her in
regard to a claim under the FECA, unless that individual's service as a
representative would violate any applicable provision of law (such as
18 U.S.C. 205 and 208). A Federal employee may act as a representative
only:
(a) On behalf of immediate family members, defined as a spouse,
children, parents, and siblings of the representative, provided no fee
or gratuity is charged; or
(b) While acting as a union representative, defined as any
officially sanctioned union official, and no fee or gratuity is
charged.
[[Page 37932]]
Sec. 10.702 How are fees for services paid?
(a) A representative may charge the claimant a fee and other costs
associated with the representation before OWCP. The claimant is solely
responsible for paying the fee and other charges. The claimant will not
be reimbursed by OWCP, nor is OWCP in any way liable for the amount of
the fee. Contingency fees are not allowed in any form.
(b) Administrative costs (mailing, copying, messenger services,
travel and the like, but not including secretarial services, paralegal
and other activities) need not be approved before the representative
collects them. Before any fee for services can be collected, however,
the fee must be approved by the Secretary.
Sec. 10.703 How are fee applications approved?
(a) Fee application. The representative must submit the fee
application to OWCP for services rendered before OWCP. (Representative
services before ECAB must be approved by ECAB under 20 CFR part 501.)
The application submitted to OWCP shall contain the following:
(1) An itemized statement showing the representative's hourly rate,
the number of hours worked and specifically identifying the work
performed and a total amount charged for the representation (excluding
administrative costs).
(2) A statement of agreement or disagreement with the amount
charged, signed by the claimant. The statement must also acknowledge
that the claimant is aware that he or she must pay the fees and that
OWCP is not responsible for paying the fee or other costs.
(b) Approval where there is no dispute. Where a fee application
that describes the services rendered in accordance with paragraph
(a)(1) of this section is accompanied by a signed statement indicating
the claimant's agreement with the fee as described in paragraph (a)(2)
of this section, the application is deemed approved except that no
contingency fee arrangement may be considered deemed approved through
this process.
(c) Disputed requests. (1) Where the claimant disagrees with the
amount of the fee, as indicated in the statement accompanying the
submittal, OWCP will evaluate the objection and decide whether or not
to approve the request. OWCP will provide a copy of the request to the
claimant and ask him or her to submit any further information in
support of the objection within 15 days from the date the request is
forwarded. After that period has passed, OWCP will evaluate the
information received to determine whether the amount of the fee is
substantially in excess of the value of services received by looking at
the following factors:
(i) Usefulness of the representative's services;
(ii) The nature and complexity of the claim;
(iii) The actual time spent on development and presentation of the
claim; and
(iv) Customary local charges for services for a representative of
similar background and experience.
(2) Where the claimant disputes the representative's request and
files an objection with OWCP, an appealable decision will be issued.
Sec. 10.704 What penalties apply to representatives who collect a fee
without approval?
Representatives who collect a fee without proper approval from OWCP
may be charged with a misdemeanor under 18 U.S.C. 292.
Third Party Liability
Sec. 10.705 When must an employee or other FECA beneficiary take
action against a third party?
(a) If an injury or death for which benefits are payable under the
FECA is caused, wholly or partially, by someone other than a Federal
employee acting within the scope of his or her employment, the claimant
can be required to take action against that third party.
(b) The Office of the Solicitor of Labor (SOL) is hereby delegated
authority to administer the subrogation aspects of certain FECA claims
for OWCP. Either OWCP or SOL can require a FECA beneficiary to assign
his or her claim for damages to the United States or to prosecute the
claim in his or her own name. All information regarding subrogation
claims administered by SOL should be submitted to Chief, Subrogation
Unit, U.S. Department of Labor, Office of the Solicitor, 200
Constitution Avenue, NW., Room S4325, Washington, DC 20210.
Sec. 10.706 How will a beneficiary know if OWCP or SOL has determined
that action against a third party is required?
When OWCP determines that an employee or other FECA beneficiary
must take action against a third party, it will notify the employee or
beneficiary in writing. If the case is transferred to SOL, a second
notification may be issued.
Sec. 10.707 What must a FECA beneficiary who is required to take
action against a third party do to satisfy the requirement that the
claim be ``prosecuted''?
At a minimum, a FECA beneficiary must do the following:
(a) Seek damages for the injury or death from the third party,
either through an attorney or on his or her own behalf;
(b) Either initiate a lawsuit within the appropriate statute of
limitations period or obtain a written release of this obligation from
OWCP or SOL unless recovery is possible through a negotiated settlement
prior to filing suit;
(c) Refuse to settle or dismiss the case for any amount less than
the amount necessary to repay OWCP's refundable disbursements, as
defined in Sec. 10.714, without receiving permission from OWCP or SOL;
(d) Provide periodic status updates and other relevant information
in response to requests from OWCP or SOL;
(e) Submit detailed information about the amount recovered and the
costs of the suit on a ``Statement of Recovery'' form approved by OMB;
(f) Submit information regarding the names of all plaintiffs to the
suit or settlement and their relationship to the injured employee, if
not the same as the FECA beneficiary;
(g) If any portion of the settlement or judgment was paid to more
than one individual, advise whether it was indicated in the settlement
or judgment the amount each individual is to receive, and if so, the
percentage of the total award;
(h) Advise whether any portion of the settlement or judgment was
paid in more than one capacity, such as a joint payment to a husband
and wife for personal injury and loss of consortium or a payment to a
spouse representing both loss of consortium and wrongful death; and
(i) Pay any required refund.
Sec. 10.708 Can a FECA beneficiary who refuses to comply with a
request to assign a claim to the United States or to prosecute the
claim in his or her own name be penalized?
When a FECA beneficiary refuses a request to either assign a claim
or prosecute a claim in his or her own name, OWCP may determine that he
or she has forfeited his or her right to all past or future
compensation for the injury with respect to which the request is made.
Alternatively, OWCP may also suspend the FECA beneficiary's
compensation payments until he or she complies with the request.
[[Page 37933]]
Sec. 10.709 What happens if a beneficiary directed by OWCP or SOL to
take action against a third party does not believe that a claim can be
successfully prosecuted at a reasonable cost?
If a beneficiary consults an attorney and is informed that a suit
for damages against a third party for the injury or death for which
benefits are payable is unlikely to prevail or that the costs of such a
suit are not justified by the potential recovery, he or she should
request that OWCP or SOL release him or her from the obligation to
proceed. This request should be in writing and provide evidence of the
attorney's opinion. If OWCP or SOL agrees, the beneficiary will not be
required to take further action against the third party.
Sec. 10.710 Under what circumstances must a recovery of money or
other property in connection with an injury or death for which benefits
are payable under the FECA be reported to OWCP or SOL?
Any person who has filed a FECA claim that has been accepted by
OWCP (whether or not compensation has been paid), or who has received
FECA benefits in connection with a claim filed by another, is required
to notify OWCP or SOL of the receipt of money or other property as a
result of a settlement or judgment in connection with the circumstances
of that claim. This includes an injured employee, and in the case of a
claim involving the death of an employee, a spouse, children or other
dependents entitled to receive survivor's benefits. OWCP or SOL should
be notified in writing within 30 days of the receipt of such money or
other property or the acceptance of the FECA claim, whichever occurs
later.
Sec. 10.711 How is the amount of the recovery of the FECA beneficiary
determined?
(a) When a FECA beneficiary is entitled to receive money as a
result of a judgment entered in a lawsuit or settlement of a lawsuit or
any other settlement or recovery from a responsible third party, the
entire amount of the award is reported as the gross recovery. To
determine the amount of the recovery of the FECA beneficiary,
deductions are made for the portion representing damage to real or
personal property, the portion representing loss of consortium, the
portion representing wrongful death and the portion representing a
survival action. To make deductions for loss of consortium, wrongful
death and survival action, it must be established that:
(1) These claims were asserted in the suit (or if there was no suit
that these claims were included in the settlement or recovery); and
(2) That such claims are permissible under the state law where the
action was brought.
(b) OWCP or SOL will determine the appropriate percentage of the
total judgment or settlement that will be allocated for loss of
consortium, wrongful death action and survival action. FECA
beneficiaries may accept OWCP's or SOL's determination or demonstrate
good cause in writing for a different allocation. Whether to accept a
specific allocation is at the discretion of OWCP or SOL, even where it
has been incorporated into the settlement agreement. OWCP or SOL will
not determine the appropriate percentage to be allocated for loss of
consortium, wrongful death action and survival action if a judge or
jury specifies the percentage to be awarded of a contested verdict
attributable to each of several plaintiffs; in such case, OWCP or SOL
will accept that percentage allocation.
(c) The amount of the recovery of the FECA beneficiary will be
determined as followed:
(1) If a settlement or judgment is paid to or for one individual,
the recovery is the gross recovery less the portion representing damage
to real or personal property. The portion representing damage to real
or personal property must be established in writing and approved by
OWCP or SOL.
(2) In any case involving an injury to an employee where a judgment
or settlement is paid to or on behalf of more than one individual, the
recovery is the gross recovery less the portion representing damage to
real or personal property and less the portion representing loss of
consortium. OWCP or SOL will allocate up to 25% for a spouse and up to
5% for each child not to exceed 15% for all children for loss of
consortium.
(3) In any case involving the death of an employee, where both
wrongful death and survival actions have been asserted, separate
statements of recovery are completed for the deceased employee and the
surviving FECA beneficiaries. For the deceased employee, the recovery
is the gross recovery less the portion representing damage to real or
personal property, less the portion representing loss of consortium,
less the portion representing the wrongful death action. For the
surviving spouse and children, the recovery is the gross recovery less
the portion representing damage to real or personal property, less the
portion representing loss of consortium, less the portion representing
the survival action. OWCP or SOL will allocate the total judgment or
settlement as follows:
(i) For loss of consortium, OWCP or SOL will allocate up to 15% for
a spouse and up to 5% for each child not to exceed 10% for all
children;
(ii) For the wrongful death action, OWCP or SOL will allocate 65%
of the remainder after subtraction of the amounts attributed to loss of
consortium;
(iii) For the survival action, OWCP or SOL will allocate 35%
percent of the remainder after subtraction of the amounts attributed to
loss of consortium.
(d) In any case involving an injury to an employee where a judgment
or settlement is paid to or on behalf of more than one individual and
in any case involving the death of an employee, court costs will be
attributed using the same percentages as was used for loss of
consortium, wrongful death action and survival action. Attorney fees
will be determined using the same percentage that was used for the
gross recovery. These calculations are used only for the purpose of
determining the amount of the refund and if applicable the surplus.
Sec. 10.712 How much of any settlement or judgment must be paid to
the United States?
The statute permits a FECA beneficiary to retain, as a minimum,
one-fifth of the net amount of money or property remaining after a
reasonable attorney's fee and the costs of litigation have been
deducted from the third-party recovery. The United States shares in the
attorney fees by allowing the beneficiary to retain, at the time of
distribution, an amount equivalent to a reasonable attorney's fee
proportionate to the refund due the United States. After the refund
owed to the United States is calculated, the FECA beneficiary retains
any surplus remaining, and this amount is credited, dollar for dollar,
against future compensation including wage-loss compensation, schedule
award benefits and medical benefits for the same injury, as defined in
Sec. 10.719. OWCP will resume the payment of compensation only after
the FECA beneficiary has been awarded compensation which exceeds the
amount of the surplus.
(a) The refund to the United States is calculated as follows, using
the Statement of Recovery form approved by OMB:
(1) Determine the amount of the recovery of the FECA beneficiary as
set forth in Sec. 10.711 as follows:
[[Page 37934]]
(i) Set out the gross recovery which is the entire amount of the
award;
(ii) Subtract the amount of award representing damage to real or
personal property approved by OWCP or SOL (Subtotal A);
(iii) Multiply Subtotal A by the appropriate percentage in Sec.
10.711(c), or if it is a contested verdict by the percentage allocated
by the judge or jury, and subtract this amount from Subtotal A
(Subtotal B);
(iv) If both a wrongful death action and survival action have been
asserted, multiply Subtotal B by 65% to determine the amount allocated
to the wrongful death case and multiply Subtotal B by 35% to determine
the amount allocated to the survival action, or if it is a contested
verdict, by the percentage allocated by the judge or jury. Separate
Statements of Recovery must be completed for each cause of action. For
the wrongful death action use the result of Subtotal B times 65% for
Subtotal C and for the survival action use the result of Subtotal B
times 35% for Subtotal C. If both a wrongful death and survival have
not been asserted the amount in Subtotal B is used for Subtotal C;
(v) Subtotal C is the amount of recovery of the FECA beneficiary;
(2) Subtract the amount of attorney's fees actually paid, but not
more than the maximum amount of attorney's fees considered by OWCP or
SOL to be reasonable, from Subtotal C. This is calculated by first
determining the attorney fee percentage which is determined by dividing
the gross recovery into the amount of attorney's fees actually paid,
but the attorney's fee amount must not be more than the maximum amount
of attorney's fees considered to be reasonable by OWCP or SOL and must
be approved by OWCP or SOL. Subtotal C is multiplied by the fee
percentage and this amount is subtracted from Subtotal C (Subtotal D);
(3) Subtract the costs of litigation, as allowed by OWCP or SOL
from Subtotal D (Subtotal E). If loss of consortium and/or wrongful
death and survival actions are claimed, the costs of litigation are
reduced first by the percentage used for loss of consortium and then by
the percentage used for wrongful death or survival action as set forth
in Sec. 10.711;
(4) Multiply Subtotal E by 20% and subtract this amount from
Subtotal E (Subtotal F);
(5) Compare Subtotal F and the refundable disbursements as defined
in Sec. 10.714. Subtotal G is the lower of the two amounts;
(6) Multiply Subtotal G by the percentage used for attorney's fees
in paragraph (a)(2), to determine the Government's allowance for
attorney's fees, and subtract this amount from Subtotal G. This is the
amount of the refund.
(b) The credit against future benefits (also referred to as the
surplus) is calculated as follows:
(1) If Subtotal F, as calculated according to paragraph (a)(4) of
this section, is less than the refundable disbursements, as defined in
Sec. 10.714, there is no credit to be applied against future benefits
(but the remainder of the unused disbursements must be applied to any
future recovery for the same injury);
(2) If Subtotal F is greater than the refundable disbursements, the
credit against future benefits (or surplus) amount is determined by
subtracting the refundable disbursements from Subtotal F.
(c) Examples of how these calculations are made follows:
(1) In this example, a Federal employee sues another party for
causing injuries for which the employee has received $22,000 in
benefits under the FECA, subject to refund. The suit is settled and the
injured employee receives $100,000, all of which was for his injury.
The injured worker paid attorney's fees of $25,000 and costs for the
litigation of $3,000.
(i) Gross Recovery...................................... $100,000.00
(ii) Amount of Property Damage.......................... $0.00
(iii) Subtotal A (Line a minus Line b).................. $100,000.00
(iv) Amount Allocated for Loss of Consortium 0% of Line $0.00
c......................................................
(v) Subtotal B (Line c minus Line d).................... $100,000.00
(vi) Amount Allocated for Wrongful Death 0% of Line e... $0.00
(vii) Amount Allocated for Survival Action 0% of Line e. $0.00
(viii) Subtotal C--If Wrongful Death use Line f, if $100,000.00
survival action use Line g, otherwise use Subtotal B...
(ix) Attorney's Fees 25% (Line h x .25)................. $25,000.00
(x) Subtotal D (Line h minus Line i).................... $75,000.00
(xi) Court costs........................................ $3,000.00
(xii) Subtotal E (Line j minus Line k).................. $72,000.00
(xiii) One-fifth of Subtotal E (Line l x .20)........... $14,400.00
(xiv) Subtotal F (Line l minus Line m).................. $57,600.00
(xv) Refundable Disbursements........................... $22,000.00
(xvi) Subtotal G (lower of Subtotal F or refundable $22,000.00
disbursements).........................................
(xvii) Government's allowance for attorney's fees $5,500.00
(attorney's fees percentage used to determine Subtotal
D multiplied by Subtotal G)............................
(xviii) Refund to the United States (Line p minus Line $16,500.00
q).....................................................
(xix) Credit against future benefits (If Subtotal F $35,600.00
greater than refundable disbursements, Line n minus
Line o)................................................
(2) In this example, a Federal employee who is married sues another
party for causing injuries as a result of car accident where she was
driving her personally owned vehicle on approved travel and the
employee received $75,000 in disbursements. The suit includes a claim
for loss of consortium which is permitted under the state law and for
damage to her vehicle (documented at $50,000.00). A joint settlement is
reached where the injured employee and her spouse receive $250,000 for
all their claims. Attorney's fees were $83,325 and there were $25,000
in approved court costs.
(i) Gross Recovery...................................... $250,000.00
(ii) Amount of Property Damage.......................... $50,000.00
(iii) Subtotal A (Line a minus Line b).................. $200,000.00
(iv) Amount Allocated for Loss of Consortium (25% of $50,000.00
Line c)................................................
(v) Subtotal B (Line c minus Line d).................... $150,000.00
(vi) Amount Allocated for Wrongful Death 0% of Line e... $0.00
[[Page 37935]]
(vii) Amount Allocated for Survival Action 0% of Line e. $0.00
(viii) Subtotal C--If Wrongful Death Use Line f, if $150,000.00
survival action use Line g, otherwise use Subtotal B...
(ix) Attorney's Fees 33.33% (line h x .3333)............ $49,995.00
(x) Subtotal D (Line h minus Line i).................... $100,005.00
(xi) Court costs are reduced by the amount allocated for $18,750.00
the loss of consortium (in this example, $25,000 -
($25,000 x .25)).......................................
(xii) Subtotal E (line j minus Line k).................. $81,255.00
(xiii) One-fifth of Subtotal E (Line l x .20)........... $16,251.00
(xiv) Subtotal F (Line l minus Line m).................. $65,004.00
(xv) Refundable Disbursements........................... $75,000.00
(xvi) Subtotal G (lower of Subtotal F or refundable $65,004.00
disbursements).........................................
(xvii) Government's allowance for attorney's fees $21,665.83
(attorney's fees percentage used to determine Subtotal
D multiplied by subtotal G)............................
(xviii) Refund to the United States (Line p minus Line $43,338.17
q).....................................................
(xix) Credit against future benefits (If Subtotal F is $0.00
greater than refundable disbursements, Line n minus
Line o)................................................
(3) In this example, a Federal employee who is married with two
minor children is killed in the performance of duty. A suit for
wrongful death and survival is filed which includes claims for loss of
consortium all of which is permitted under state law. A joint
settlement is reached for all claims and all parties in the amount of
$1,000,000. There were court costs of $48,000 and attorney's fees of
$300,000. Two Statements of Recovery are completed: One for the
wrongful death claim and the other for the survival action.
Disbursements in this case were $30,000 for the deceased employee and
$100,000 for the surviving spouse and children.
(i) For the wrongful death claim the calculation is as follows:
(A) Gross Recovery................................... $1,000.000.00
(B) Amount of Property Damage........................ $0.00
(C) Subtotal A (Line a minus Line b)................. $1,000,000.00
(D) Amount Allocated for Loss of Consortium (25% (15% $250,000.00
for spouse, 5% for each child) of Line c)...........
(E) Subtotal B (Line c minus Line d)................. $750,000.00
(F) Amount Allocated for Wrongful Death 65% of Line e $487,500.00
(G) Amount Allocated for Survival Action 35% of Line $262,500.00
e...................................................
(H) Subtotal C--If Wrongful Death Use Line f, if $487,500.00
survival action use Line g, otherwise use Subtotal B
(I) Attorney's Fees 30% (Line h x .30)............... $146,250.00
(J) Subtotal D (Line h minus Line i)................. $341,250.00
(K) Court costs are reduced by the amount allocated $23,400.00
for the loss of consortium (in this example, .25 x
$48,000 = 12,000) and then by the amount allocated
for survivor action, [(48,000 - 12,000) x .35 =
12,600], [48,000 - 12,000 - 12,600])................
(L) Subtotal E (Line j minus Line k)................. $317,850.00
(M) One-fifth of Subtotal E (Line l x .20)........... $63,570.00
(N) Subtotal F (Line l minus Line m)................. $254,280.00
(O) Refundable Disbursements......................... $100,000.00
(P) Subtotal G (lower of Subtotal F or refundable $100,000.00
disbursements)......................................
(Q) Government's allowance for attorney's fees $30,000.00
(attorney's fees percentage used to determine
Subtotal D multiplied by subtotal G)................
(R) Refund to the United States (Line p minus Line q) $70,000.00
(S) Credit against future benefits (If Subtotal F is $154,280.00
greater than refundable disbursements, Line n minus
Line o).............................................
(ii) For the survival claim the calculation is as follows:
(A) Gross Recovery................................... $1,000.000.00
(B) Amount of Property Damage........................ $0.00
(C) Subtotal A (Line a minus Line b)................. $1,000,000.00
(D) Amount Allocated for Loss of Consortium (25% (15% $250,000.00
for spouse, 5% for each child) of Line c)...........
(E) Subtotal B (Line c minus Line d)................. $750,000.00
(F) Amount Allocated for Wrongful Death 65% of Line e $487,500.00
(G) Amount Allocated for Survival Action 35% of Line $262,500.00
e...................................................
(H) Subtotal C--If Wrongful Death Use Line f, if $262,500.00
survival action use Line g, otherwise use Subtotal B
(I) Attorney's Fees 30% (line h x .30)............... $78,750.00
(J) Subtotal D (Line h minus Line i)................. $183,750.00
(K) Court costs are reduced by the amount allocated $12,600.00
for the loss of consortium (in this example, .25 x
$48,000 = 12,000) and then by the amount allocated
for wrongful death, [(48,000 - 12,000) x .65 =
23,400], [48,000 - 12,000 - 23,400])................
(L) Subtotal E (Line j minus Line k)................. $171,150.00
(M) One-fifth of Subtotal E (Line l x .20)........... $34,230.00
(N) Subtotal F (Line l minus Line m)................. $136,920.00
(O) Refundable Disbursements......................... $30,000.00
(P) Subtotal G (lower of Subtotal F or refundable $30,000.00
disbursements)......................................
(Q) Government's allowance for attorney's fees $9,000.00
(attorney's fees percentage used to determine
Subtotal D multiplied by subtotal G)................
(R) Refund to the United States (Line p minus Line q) $21,000.00
(S) Credit against future benefits (If Subtotal F is $106,920.00
greater than refundable disbursements, Line n minus
Line o).............................................
[[Page 37936]]
Sec. 10.713 How is a structured settlement (that is, a settlement
providing for receipt of funds over a specified period of time) treated
for purposes of reporting the gross recovery?
In this situation, the gross recovery to be reported is the present
value of the right to receive all of the payments included in the
structured settlement, allocated in the case of multiple recipients in
the same manner as single payment recoveries.
Sec. 10.714 What amounts are included in the refundable
disbursements?
The refundable disbursements of a specific claim consist of the
total money paid by OWCP from the Employees' Compensation Fund with
respect to that claim to or on behalf of a FECA beneficiary including
charges for field nurses, vocational rehabilitation, and second opinion
and referee physicians, less charges for any medical file review (i.e.,
the physician does not examine the employee) done at the request of
OWCP. Charges for medical examinations also may be subtracted if the
FECA beneficiary establishes that the examinations were required to be
made available to the employee under a statute other than the FECA by
the employing agency or at the employing agency's cost. Requests for
disbursements can be made to SOL or OWCP.
Sec. 10.715 Is a beneficiary required to pay interest on the amount
of the refund due to the United States?
If the refund due to the United States is not submitted within 30
days of receiving a request for payment from SOL or OWCP, interest
shall accrue on the refund due to the United States from the date of
the request. The rate of interest assessed shall be the rate of the
current value of funds to the United States Treasury as published in
the Federal Register (as of the date the request for payment is sent).
Waiver of the collection of interest shall be in accordance with the
provisions of the Department of Labor regulations on Federal Claims
Collection governing waiver of interest, 29 CFR 20.61.
Sec. 10.716 If the required refund is not paid within 30 days of the
request for repayment, can it be collected from payments due under the
FECA?
If the required refund is not paid within 30 days of the request
for payment, OWCP can, in its discretion, collect the refund by
withholding all or part of any payments currently payable to the
beneficiary under the FECA with respect to any injury. The waiver
provisions of Sec. Sec. 10.432 through 10.440 do not apply to such
determinations.
Sec. 10.717 Is a settlement or judgment received as a result of
allegations of medical malpractice in treating an injury covered by the
FECA a gross recovery that must be reported to OWCP or SOL?
Since an injury caused by medical malpractice in treating an injury
covered by the FECA is also an injury covered under the FECA, any
recovery in a suit alleging such an injury is treated as a gross
recovery that must be reported to OWCP or SOL.
Sec. 10.718 Are payments to a beneficiary as a result of an insurance
policy which the beneficiary has purchased a gross recovery that must
be reported to OWCP or SOL?
Since payments received by a FECA beneficiary pursuant to an
insurance policy purchased by someone other than a liable third party
are not payments in satisfaction of liability for causing an injury
covered by the FECA, they are not considered a gross recovery covered
by section 8132 that requires filing a Statement of Recovery and paying
any required refund.
Sec. 10.719 If a settlement or judgment is received for more than one
wound or medical condition, can the refundable disbursements paid on a
single FECA claim be attributed to different conditions for purposes of
calculating the refund or credit owed to the United States?
(a) All wounds, diseases or other medical conditions accepted by
OWCP in connection with a single claim are treated as the same injury
for the purpose of computing any required refund and any credit against
future benefits in connection with the receipt of a recovery from a
third party, except that an injury caused by medical malpractice in
treating an injury covered under the FECA will be treated as a separate
injury for purposes of section 8132.
(b) If an injury covered under the FECA is caused under
circumstances creating a legal liability in more than one person, other
than the United States, to pay damages, OWCP or SOL will determine
whether recoveries received from one or more third parties should be
attributed to separate conditions for which compensation is payable in
connection with a single FECA claim. If such an attribution is both
practicable and equitable, as determined by OWCP or SOL, in its
discretion, the conditions will be treated as separate injuries for
purposes of calculating the refund and credit owed to the United States
under section 8132.
Federal Grand and Petit Jurors
Sec. 10.725 When is a Federal grand or petit juror covered under the
FECA?
(a) Federal grand and petit jurors are covered under the FECA when
they are in performance of duty as a juror, which includes that time
when a juror is:
(1) In attendance at court pursuant to a summons;
(2) In deliberation;
(3) Sequestered by order of a judge; or
(4) At a site, by order of the court, for the taking of a view.
(b) A juror is not considered to be in the performance of duty
while traveling to or from home in connection with the activities
enumerated in paragraphs (a) (1) through (4) of this section.
Sec. 10.726 When does a juror's entitlement to disability
compensation begin?
Pursuant to 28 U.S.C. 1877, entitlement to disability compensation
does not commence until the day after the date of termination of
service as a juror.
Sec. 10.727 What is the pay rate of jurors for compensation purposes?
For the purpose of computing compensation payable for disability or
death, a juror is deemed to receive pay at the minimum rate for Grade
GS-2 of the General Schedule unless his or her actual pay as an
``employee'' of the United States while serving on court leave is
higher, in which case the pay rate for compensation purposes is
determined in accordance with 5 U.S.C. 8114.
Peace Corps Volunteers
Sec. 10.730 What are the conditions of coverage for Peace Corps
volunteers and volunteer leaders injured while serving outside the
United States?
(a) Any injury sustained by a volunteer or volunteer leader while
he or she is located abroad is deemed proximately caused by Peace Corps
employment and will be found by OWCP to have been sustained in the
performance of duty, and any illness contracted while that volunteer is
located abroad will be found by OWCP to be proximately caused by the
employment unless the evidence establishes:
(1) The injury or illness was caused by the claimant's willful
misconduct, intent to bring about the injury or death of self or
another, or was proximately caused by the intoxication by alcohol or
illegal drugs of the injured claimant; or
(2) The illness is shown to have pre-existed the period of service
abroad; or
(3) The injury or illness claimed is a manifestation of symptoms
of, or
[[Page 37937]]
consequent to, a pre-existing congenital defect or abnormality.
(b) If the OWCP finds that the evidence indicates that the injury
or illness may not have been sustained in the performance of duty due
to the circumstances enumerated in paragraph (a)(2) and (3) of this
section, the claimant may still prove his claim by the submittal of
substantial and probative evidence that such injury or illness was
sustained in the performance of duty with the Peace Corps.
(c) If an injury or illness, or episode thereof, comes within one
of the exceptions described in paragraph (a)(2) or (3) of this section,
the claimant may nonetheless be entitled to compensation. This will be
so provided he or she meets the burden of proving by the submittal of
substantial, probative and rationalized medical evidence that the
illness or injury was proximately caused by factors or conditions of
Peace Corps service, or that it was materially aggravated, accelerated
or precipitated by factors of Peace Corps service; if the injury or
illness was temporarily aggravated by factors of Peace Corps service,
disability compensation is payable for the period of such aggravation.
Sec. 10.731 What is the pay rate of Peace Corps volunteers and
volunteer leaders for compensation purposes?
The pay rate for these claimants is defined as the pay rate in
effect on the date following separation, provided that the rate equals
or exceeds the pay rate on the date of injury. It is defined in
accordance with 5 U.S.C. 8142(a), not 8101(4).
Non-Federal Law Enforcement Officers
Sec. 10.735 When is a non-Federal law enforcement officer (LEO)
covered under the FECA?
(a) A law enforcement officer (officer) includes an employee of a
State or local Government, the Governments of U.S. possessions and
territories, or an employee of the United States pensioned or
pensionable under sections 521-535 of Title 4, D.C. Code, whose
functions include the activities listed in 5 U.S.C. 8191.
(b) Benefits are available to officers who are not ``employees''
under 5 U.S.C. 8101, and who are determined in the discretion of OWCP
to have been engaged in the activities listed in 5 U.S.C. 8191 with
respect to the enforcement of crimes against the United States.
Individuals who only perform administrative functions in support of
officers are not considered officers.
(c) Except as provided by 5 U.S.C. 8191 and 8192 and elsewhere in
this part, the provisions of the FECA and of subparts A, B, and D
through I of this part apply to officers.
Sec. 10.736 What are the time limits for filing a LEO claim?
OWCP must receive a claim for benefits under 5 U.S.C. 8191 within
five years after the injury or death. This five-year limitation is not
subject to waiver. The tolling provisions of 5 U.S.C. 8122(d) do not
apply to these claims.
Sec. 10.737 How is a LEO claim filed, and who can file a LEO claim?
A claim for injury or occupational disease should be filed on Form
CA-721; a death claim should be filed on Form CA-722. All claims should
be submitted to the officer's employer for completion and forwarding to
OWCP. A claim may be filed by the officer, the officer's survivor, or
any person or association authorized to act on behalf of an officer or
an officer's survivors.
Sec. 10.738 Under what circumstances are benefits payable in LEO
claims?
(a) Benefits are payable when an officer is injured while
apprehending, or attempting to apprehend, an individual for the
commission of a Federal crime. However, either an actual Federal crime
must be in progress or have been committed, or objective evidence (of
which the officer is aware at the time of injury) must exist that a
potential Federal crime was in progress or had already been committed.
The actual or potential Federal crime must be an integral part of the
criminal activity toward which the officer's actions are directed. The
fact that an injury to an officer is related in some way to the
commission of a Federal crime does not necessarily bring the injury
within the coverage of the FECA. The FECA is not intended to cover
officers who are merely enforcing local laws.
(b) For benefits to be payable when an officer is injured
preventing, or attempting to prevent, a Federal crime, there must be
objective evidence that a Federal crime is about to be committed. An
officer's belief, unsupported by objective evidence, that he or she is
acting to prevent the commission of a Federal crime will not result in
coverage. Moreover, the officer's subjective intent, as measured by all
available evidence (including the officer's own statements and
testimony, if available), must have been directed toward the prevention
of a Federal crime. In this context, an officer's own statements and
testimony are relevant to, but do not control, the determination of
coverage.
Sec. 10.739 What kind of objective evidence of a potential Federal
crime must exist for coverage to be extended?
Based on the facts available at the time of the event, the officer
must have an awareness of sufficient information which would lead a
reasonable officer, under the circumstances, to conclude that a Federal
crime was in progress, or was about to occur. This awareness need not
extend to the precise particulars of the crime (the section of Title
18, United States Code, for example), but there must be sufficient
evidence that the officer was in fact engaged in actual or attempted
apprehension of a Federal criminal or prevention of a Federal crime.
Sec. 10.740 In what situations will OWCP automatically presume that a
law enforcement officer is covered by the FECA?
(a) Where an officer is detailed by a competent State or local
authority to assist a Federal law enforcement authority in the
protection of the President of the United States, or any other person
actually provided or entitled to U.S. Secret Service protection,
coverage will be extended.
(b) Coverage for officers of the U.S. Park Police and those
officers of the Uniformed Division of the U.S. Secret Service who
participate in the District of Columbia Retirement System is
adjudicated under the principles set forth in paragraph (a) of this
section, and does not extend to numerous tangential activities of law
enforcement (for example, reporting to work, changing clothes).
However, officers of the Non-Uniformed Division of the U.S. Secret
Service who participate in the District of Columbia Retirement System
are covered under the FECA during the performance of all official
duties.
Sec. 10.741 How are benefits calculated in LEO claims?
(a) Except for continuation of pay, eligible officers and survivors
are entitled to the same benefits as if the officer had been an
employee under 5 U.S.C. 8101. However, such benefits may be reduced or
adjusted as OWCP in its discretion may deem appropriate to reflect
comparable benefits which the officer or survivor received or would
have been entitled to receive by virtue of the officer's employment.
(b) For the purpose of this section, a comparable benefit includes
any benefit that the officer or survivor is entitled to receive because
of the officer's employment, including pension and disability funds,
State workers' compensation payments, Public Safety Officers' Benefits
Act payments, and State and local lump-sum payments.
[[Page 37938]]
Health benefits coverage and proceeds of life insurance policies
purchased by the employer are not considered to be comparable benefits.
(c) The FECA provides that, where an officer receives comparable
benefits, compensation benefits are to be reduced proportionally in a
manner that reflects the relative percentage contribution of the
officer and the officer's employer to the fund which is the source of
the comparable benefit. Where the source of the comparable benefit is a
retirement or other system which is not fully funded, the calculation
of the amount of the reduction will be based on a per capita comparison
between the contribution by the employer and the contribution by all
covered officers during the year prior to the officer's injury or
death.
(d) The non-receipt of compensation during a period where a dual
benefit (such as a lump-sum payment on the death of an officer) is
being offset against compensation entitlement does not result in an
adjustment of the respective benefit percentages of remaining
beneficiaries because of a cessation of compensation under 5 U.S.C.
8133(c).
Subpart I--Information for Medical Providers
Medical Records and Bills
Sec. 10.800 How do providers enroll with OWCP for authorizations and
billing?
(a) All providers must enroll with OWCP or its designated bill
processing agent (hereinafter OWCP in this subpart) to have access to
the automated authorization system and to submit medical bills to OWCP.
To enroll, the provider must complete and submit a Form OWCP-1168 to
the appropriate location noted on that form. By completing and
submitting this form, providers certify that they satisfy all
applicable Federal and State licensure and regulatory requirements that
apply to their specific provider or supplier type. The provider must
maintain documentary evidence indicating that it satisfies those
requirements. The provider is also required to notify OWCP immediately
if any information provided to OWCP in the enrollment process changes.
Agency medical officers, private physicians and hospitals are also
required to keep records of all cases treated by them under the FECA so
they can supply OWCP with a history of the injury, a description of the
nature and extent of injury, the results of any diagnostic studies
performed, the nature of the treatment rendered and the degree of any
impairment and/or disability arising from the injury.
(b) Where a medical provider intends to bill for a procedure where
prior authorization is required, that provider must request such
authorization from OWCP.
(c) After enrollment, a provider must submit all medical bills to
OWCP through its bill processing portal and include the Provider
Number/ID obtained through enrollment or other identifying number
required by OWCP.
Sec. 10.801 How are medical bills to be submitted?
(a) All charges for medical and surgical treatment, appliances or
supplies furnished to injured employees, except for treatment and
supplies provided by nursing homes, shall be supported by medical
evidence as provided in Sec. 10.800. OWCP may withhold payment for
services until such report or evidence is provided. The physician or
provider shall itemize the charges on Form OWCP-1500 or CMS-1500 (for
professional services or medicinal drugs dispensed in the office), Form
OWCP-04 or UB-04 (for hospitals), an electronic or paper-based bill
that includes required data elements (for pharmacies) or other form as
warranted and accepted by OWCP, and submit the form promptly to OWCP.
(b) The provider shall identify each service performed using the
Physician's Current Procedural Terminology (CPT) code, the Healthcare
Common Procedure Coding System (HCPCS) code, the National Drug Code
(NDC), or the Revenue Center Code (RCC) with a brief narrative
description; OWCP has discretion to determine which of these codes may
be utilized in the billing process. The Director also has the authority
to create and supply specific procedure codes that will be used by OWCP
to better describe and allow specific payments for special services.
These OWCP-created codes will be issued to providers by OWCP as
appropriate and may only be used as authorized by OWCP. For example, a
physician conducting a referee or second opinion examination under 5
U.S.C. 8123 will be furnished an OWCP-created code; a provider may not
use such an OWCP-created code for other types of medical examinations
or services. Where no appropriate code is submitted to identify the
services performed, the bill will be returned to the provider and/or
denied.
(c) For professional charges billed on Form OWCP-1500 or CMS-1500,
the provider shall also state each diagnosed condition and furnish the
corresponding diagnostic code using the ``International Classification
of Disease, 9th Edition, Clinical Modification'' (ICD-9-CM), or as
revised. A separate bill shall be submitted when the employee is
discharged from treatment or monthly, if treatment for the work-related
condition is necessary for more than 30 days.
(1) (i) Hospitals shall submit charges for inpatient medical and
surgical treatment or supplies promptly to OWCP on Form OWCP-04 or UB-
04.
(ii) For outpatient billing, the provider shall identify each
service performed, using Revenue Center Codes (RCCs) and HCPCS/CPT
codes as warranted. The charge for each individual service, or the
total charge for all identical services, should also appear on the
form. OWCP may adopt an Outpatient Prospective Payment System (OWCP
OPPS) (as developed and implemented by the Center for Medicare and
Medicaid services (CMS) for Medicare, while modifying the allowable
costs under Medicare to account for deductibles and other additional
costs which are covered by FECA). Once adopted, hospital providers
shall submit outpatient hospital bills on the current version of the
Universal Billing Form (UB) and use HCPCS codes and other coding
schemes in accordance with the OWCP OPPS.
(2) Pharmacies shall itemize charges for prescription medications,
appliances, or supplies on electronic or paper-based bills and submit
them promptly to OWCP. Bills for prescription medications must include
the NDC assigned to the product, the generic or trade name of the drug
provided, the prescription number, the quantity provided, and the date
the prescription was filled.
(3) Nursing homes shall itemize charges for appliances, supplies or
services on the provider's billhead stationery and submit them promptly
to OWCP. Such charges shall be subject to any applicable OWCP fee
schedule.
(d) By submitting a bill and/or accepting payment, the provider
signifies that the service for which reimbursement is sought was
performed as described, necessary, appropriate and properly billed in
accordance with accepted industry standards. For example, accepted
industry standards preclude upcoding billed services for extended
medical appointments when the employee actually had a brief routine
appointment, or charging for the services of a professional when a
paraprofessional or aide performed the service; industry standards
prohibit unbundling services to charge separately for services that
should be billed as a single charge. In addition, the provider thereby
agrees to comply with all regulations set forth in this subpart
concerning the rendering of treatment
[[Page 37939]]
and/or the process for seeking reimbursement for medical services,
including the limitation imposed on the amount to be paid for such
services.
(e) In summary, bills submitted by providers must: Be itemized on
the Health Insurance Claim Form (for physicians) or the OWCP-04 (for
hospitals); contain the signature or signature stamp of the provider;
and identify the procedures using HCPCS/CPT codes, RCCs, or NDCs.
Otherwise, OWCP may deny the bill, and the provider must correct and
resubmit the bill.
Sec. 10.802 How should an employee prepare and submit requests for
reimbursement for medical expenses, transportation costs, loss of
wages, and incidental expenses?
(a) If an employee has paid bills for medical, surgical or dental
services, supplies or appliances due to an injury sustained in the
performance of duty and seeks reimbursement for those expenses, he or
she may submit a request for reimbursement on Form OWCP-915, together
with an itemized bill on Form OWCP-1500, CMS-1500, OWCP-04 or UB-04
prepared by the provider and a medical report as provided in Sec.
10.800, to OWCP.
(1) The provider of such service shall state each diagnosed
condition and furnish the applicable ICD-9-CM code, or as revised, and
identify each service performed using the applicable HCPCS/CPT code,
with a brief narrative description of the service performed, or, where
no code is applicable, a detailed description of that service. If no
code or description is received, OWCP will deny the reimbursement
request and correction and resubmission will be required.
(2) The reimbursement request must be accompanied by evidence that
the provider received payment for the service from the employee and a
statement of the amount paid. Acceptable evidence that payment was
received includes, but is not limited to, a signed statement by the
provider, a mechanical stamp or other device showing receipt of
payment, a copy of the employee's canceled check (both front and back)
or a copy of the employee's credit card receipt or a form indicating a
balance of zero to the provider.
(b) If services were provided by a hospital, pharmacy or nursing
home, the employee should submit the bill in accordance with the
provisions of Sec. 10.801(a). Any request for reimbursement must be
accompanied by evidence, as described in paragraph (a) of this section,
that the provider received payment for the service from the employee
and a statement of the amount paid.
(c) OWCP may waive the requirements of paragraphs (a) and (b) of
this section if extensive delays in the filing or the adjudication of a
claim make it unusually difficult for the employee to obtain the
required information.
(d) OWCP will not accept copies of bills for reimbursement unless
they bear the signature of the provider, with evidence of payment.
Payment for medical and surgical treatment, appliances or supplies
shall in general be no greater than the maximum allowable charge for
such service determined by the Director, as set forth in Sec. 10.805.
(e) An employee will be only partially reimbursed for a medical
expense if the amount he or she paid to a provider for the service
exceeds the maximum allowable charge set by the Director's schedule. If
this happens, OWCP shall advise the employee of the maximum allowable
charge for the service in question and of his or her responsibility to
ask the provider to refund to the employee, or credit to the employee's
account, the amount he or she paid which exceeds the maximum allowable
charge. The provider may request reconsideration of the fee
determination as set forth in Sec. 10.812.
(f) If the provider fails to make appropriate refund to the
employee, or to credit the employee's account, within 60 days after the
employee requests a refund of any excess amount, or the date of a
subsequent reconsideration decision which continues to disallow all or
a portion of the appealed amount, the provider shall be subject to
exclusion procedures as provided by Sec. 10.815.
(g) If the provider does not refund to the employee or credit to
his or her account the amount of money paid in excess of the charge
which OWCP allows, the employee should submit documentation of the
attempt to obtain such refund or credit to OWCP. OWCP may make
reasonable reimbursement to the employee after reviewing the facts and
circumstances of the case.
(h) If an employee seeks reimbursement for transportation costs,
loss of wages or incidental expenses related to medical treatment under
this part, that employee may submit such reimbursement request on the
Medical Travel Refund Request OWCP-957 form to OWCP along with all
proof of payment. Requests for reimbursement for lost wages under this
subsection must include an official statement from the employing agency
indicating the amount of wage loss.
Sec. 10.803 What are the time limitations on OWCP's payment of bills?
OWCP will pay providers and reimburse employees promptly for all
bills received on an approved form and in a timely manner. However, no
bill will be paid for expenses incurred if the bill is submitted more
than one year beyond the end of the calendar year in which the expense
was incurred or the service or supply was provided, or more than one
year beyond the end of the calendar year in which the claim was first
accepted as compensable by OWCP, whichever is later.
Medical Fee Schedule
Sec. 10.805 What services are covered by the OWCP fee schedule?
(a) Payment for medical and other health services, devices and
supplies furnished by physicians, hospitals, and other providers for
work-related injuries shall not exceed a maximum allowable charge for
such service as determined by the Director, except as provided in this
section.
(b) The schedule of maximum allowable charges does not apply to
charges for services provided in nursing home for employees admitted to
that nursing home prior to August 29, 2011, but does apply to all
charges for services provided by a nursing home where the employee was
admitted to that nursing home after that date. The schedule does apply
to charges for treatment furnished in a nursing home by a physician or
other medical professional at any time.
(c) The schedule of maximum allowable charges also does not apply
to charges for appliances, supplies, services or treatment furnished by
medical facilities of the U.S. Public Health Service or the Departments
of the Army, Navy, Air Force and Veterans Affairs.
Sec. 10.806 How are the maximum fees defined?
For professional medical services, the Director shall maintain a
schedule of maximum allowable fees for procedures performed in a given
locality. The schedule shall consist of: An assignment of Relative
Value Units (RVU) to procedures identified by Healthcare Common
Procedure Coding System/Current Procedural Terminology (HCPCS/CPT) code
which represents the relative skill, effort, risk and time required to
perform the procedure, as compared to other procedures of the same
general class; an assignment of Geographic Practice Cost Index (GPCI)
values which represent the relative work, practice expenses and
malpractice expenses relative to other localities throughout the
country; and a monetary
[[Page 37940]]
value assignment (conversion factor) for one unit of value for each
coded service.
Sec. 10.807 How are payments for particular services calculated?
Payment for a procedure, service or device identified by a HCPCS/
CPT code shall not exceed the amount derived by multiplying the
Relative Value Units (RVU) values for that procedure by the Geographic
Practice Cost Index (GPCI) values for services in that area and by the
conversion factor to arrive at a dollar amount assigned to one unit in
that category of service.
(a) The ``locality'' which serves as a basis for the determination
of cost is defined by the Office of Management and Budget Metropolitan
Statistical Areas. The Director shall base the determination of the
relative per capita cost of medical care in a locality using
information about enrollment and medical cost per county, provided by
the Centers for Medicare and Medicaid Services (CMS).
(b) The Director shall assign the RVUs published by CMS to all
services for which CMS has made assignments, using the most recent
revision. Where there are no RVUs assigned to a procedure, the Director
may develop and assign any RVUs that he or she considers appropriate.
The geographic adjustment factor shall be that designated by GPCI for
Metropolitan Statistical Areas as devised for CMS and as updated or
revised by CMS from time to time. The Director will devise conversion
factors for each category of service as appropriate using OWCP's
processing experience and internal data.
(c) For example, if the RVUs for a particular surgical procedure
are 2.48 for physician's work (W), 3.63 for practice expense (PE), and
0.48 for malpractice insurance (MP), and the conversion factor assigned
to one unit in that category of service (surgery) is $61.20, then the
maximum allowable charge for one performance of that procedure is the
product of the three RVUs times the corresponding GPCI values for the
locality times the conversion factor. If the GPCI values for the
locality are 0.988(W), 0.948 (PE), and 1.174 (MP), then the maximum
payment calculation is:
[(2.48)(0.988) + (3.63)(0.948) + (0.48)(1.174)] x $61.20
[2.45 + 3.44 + .56] x $61.20
6.45 x $61.20 = $394.74
Sec. 10.808 Does the fee schedule apply to every kind of procedure?
Where the time, effort and skill required to perform a particular
procedure vary widely from one occasion to the next, the Director may
choose not to assign a relative value to that procedure. In this case
the allowable charge for the procedure will be set individually based
on consideration of a detailed medical report and other evidence. At
its discretion, OWCP may set fees without regard to schedule limits for
specially authorized consultant examinations, for examinations
performed under 5 U.S.C. 8123, and for other specially authorized
services.
Sec. 10.809 How are payments for medicinal drugs determined?
Payment for medicinal drugs prescribed by physicians shall not
exceed the amount derived by multiplying the average wholesale price,
or as otherwise specified by OWCP, of the medication by the quantity or
amount provided, plus a dispensing fee. OWCP may, in its discretion,
contract for or require the use of specific providers for certain
medications.
(a) All prescription medications identified by National Drug Code
(NDC) will be assigned an average wholesale price representing the
product's nationally recognized wholesale price as determined by
surveys of manufacturers and wholesalers, or by other method designated
by OWCP. The Director will establish the dispensing fee, which will not
be affected by the location or type of provider dispensing the
medication.
(b) The NDCs, the average wholesale prices, and the dispensing fee
shall be reviewed from time to time and updated as necessary.
(c) With respect to prescribed medications, OWCP may require the
use of generic equivalents where they are available.
Sec. 10.810 How are payments for inpatient medical services
determined?
(a) OWCP will pay for inpatient medical services according to pre-
determined, condition-specific rates based on the Inpatient Prospective
Payment System (IPPS) devised by CMS (42 CFR parts 412, 413, 424, 485,
and 489). Using this system, payment is derived by multiplying the
diagnosis-related group (DRG) weight assigned to the hospital discharge
by the provider-specific factors.
(1) All inpatient hospital discharges will be classified according
to the DRGs prescribed by the CMS in the form of the DRG Grouper
software program. Each DRG represents the average resources necessary
to provide care in a case in that DRG relative to the national average
of resources consumed per case.
(2) The provider-specific factors will be provided by CMS in the
form of their PPS Pricer software program. The software takes into
consideration the type of facility, census division, actual geographic
location (MSA) of the hospital, case mix cost per discharge, number of
hospital beds, intern/beds ratio, operating cost to charge ratio, and
other factors used by CMS to determine the specific rate for a hospital
discharge under their PPS. The Director may devise price adjustment
factors as appropriate using OWCP's processing experience and internal
data.
(3) OWCP will base payments to facilities excluded from CMS' IPPS
on consideration of detailed medical reports and other evidence.
(4) The Director shall review the pre-determined hospital rates at
least once a year, and may adjust any or all components when he or she
deems it necessary or appropriate.
(b) The Director shall review the schedule of fees at least once a
year, and may adjust the schedule or any of its components when he or
she deems it necessary or appropriate.
Sec. 10.811 When and how are fees reduced?
(a) OWCP accepts a provider's designation of the code used to
identify a billed procedure or service if the code is consistent with
the medical and other evidence, and will pay no more than the maximum
allowable fee for that procedure. If the code is not consistent with
the medical evidence or where no code is supplied, the bill will be
returned to the provider for correction and resubmission.
(b) If the charge submitted for a service supplied to an injured
employee exceeds the maximum amount determined to be reasonable
according to the schedule, OWCP shall pay the amount allowed by the
schedule for that service and shall notify the provider in writing that
payment was reduced for that service in accordance with the schedule.
OWCP shall also notify the provider of the method for requesting
reconsideration of the balance of the charge.
Sec. 10.812 If OWCP reduces a fee, may a provider request
reconsideration of the reduction?
(a) A physician or other provider whose charge for service is only
partially paid because it exceeds a maximum allowable amount set by the
Director may, within 30 days, request reconsideration of the fee
determination.
(1) The provider should make such a request to the OWCP district
office with jurisdiction over the employee's claim. The request must be
accompanied by documentary evidence that the procedure performed was
incorrectly
[[Page 37941]]
identified by the original code, that the presence of a severe or
concomitant medical condition made treatment especially difficult, or
that the provider possessed unusual qualifications. In itself, board-
certification in a specialty is not sufficient evidence of unusual
qualifications to justify an exception. These are the only three
circumstances which will justify reevaluation of the paid amount.
(2) A list of OWCP district offices and their respective areas of
jurisdiction is available upon request from the U.S. Department of
Labor, Office of Workers' Compensation Programs, Washington, DC 20210,
or from the Internet at http://www.dol.gov./owcp. Within 30 days of
receiving the request for reconsideration, the OWCP district office
shall respond in writing stating whether or not an additional amount
will be allowed as reasonable, considering the evidence submitted.
(b) If the OWCP district office issues a decision which continues
to disallow a contested amount, the provider may apply to the Regional
Director of the region with jurisdiction over the OWCP district office.
The application must be filed within 30 days of the date of such
decision, and it may be accompanied by additional evidence. Within 60
days of receipt of such application, the Regional Director shall issue
a decision in writing stating whether or not an additional amount will
be allowed as reasonable, considering the evidence submitted. This
decision shall be final, and shall not be subject to further review.
Sec. 10.813 If OWCP reduces a fee, may a provider bill the claimant
for the balance?
A provider whose fee for service is partially paid by OWCP as a
result of the application of its fee schedule or other tests for
reasonableness in accordance with this part shall not request
reimbursement from the employee for additional amounts.
(a) Where a provider's fee for a particular service or procedure is
lower to the general public than as provided by the schedule of maximum
allowable charges, the provider shall bill at the lower rate. A fee for
a particular service or procedure which is higher than the provider's
fee to the general public for that same service or procedure will be
considered a charge ``substantially in excess of such provider's
customary charges'' for the purposes of Sec. 10.815(d).
(b) A provider whose fee for service is partially paid by OWCP as
the result of the application of the schedule of maximum allowable
charges and who collects or attempts to collect from the employee,
either directly or through a collection agent, any amount in excess of
the charge allowed by OWCP, and who does not cease such action or make
appropriate refund to the employee within 60 days of the date of the
decision of OWCP, shall be subject to the exclusion procedures provided
by Sec. 10.815(h).
Exclusion of Providers
Sec. 10.815 What are the grounds for excluding a provider from
payment under the FECA?
A physician, hospital, or provider of medical services, appliances
or supplies shall be excluded from payment under the FECA if such
physician, hospital or provider has:
(a) Been convicted under any criminal statute of fraudulent
activities in connection with any Federal or State program for which
payments are made to providers for similar medical, surgical or
hospital services, appliances or supplies;
(b) Been excluded or suspended, or has resigned in lieu of
exclusion or suspension, from participation in any Federal or State
program referred to in paragraph (a) of this section;
(c) Knowingly made, or caused to be made, any false statement or
misrepresentation of a material fact in connection with a determination
of the right to reimbursement under the FECA, or in connection with a
request for payment;
(d) Submitted, or caused to be submitted, three or more bills or
requests for payment within a twelve-month period under this subpart
containing charges which OWCP finds to be substantially in excess of
such provider's customary charges, unless OWCP finds there is good
cause for the bills or requests containing such charges;
(e) Knowingly failed to timely reimburse employees for treatment,
services or supplies furnished under this subpart and paid for by OWCP;
(f) Failed, neglected or refused on three or more occasions during
a 12-month period to submit full and accurate medical reports, or to
respond to requests by OWCP for additional reports or information, as
required by the FECA and Sec. 10.800;
(g) Knowingly furnished treatment, services or supplies which are
substantially in excess of the employee's needs, or of a quality which
fails to meet professionally recognized standards; or
(h) Collected or attempted to collect from the employee, either
directly or through a collection agent, an amount in excess of the
charge allowed by OWCP for the procedure performed, and has failed or
refused to make appropriate refund to the employee, or to cease such
collection attempts, within 60 days of the date of the decision of
OWCP.
(i) Failed to inform OWCP of any change in their provider status as
required in section 10.800 of this title.
(j) Engaged in conduct related to care of an employee's FECA
covered injury that OWCP finds to be misleading, deceptive or unfair.
Sec. 10.816 What will cause OWCP to automatically exclude a physician
or other provider of medical services and supplies?
(a) OWCP shall automatically exclude a physician, hospital, or
provider of medical services or supplies who has been convicted of a
crime described in Sec. 10.815(a), or has been excluded or suspended,
or has resigned in lieu of exclusion or suspension, from participation
in any program as described in Sec. 10.815(b).
(b) The exclusion applies to participating in the program and to
seeking payment under the FECA for services performed after the date of
the entry of the judgment of conviction or order of exclusion,
suspension or resignation, as the case may be, by the court or agency
concerned. Proof of the conviction, exclusion, suspension or
resignation may consist of a copy thereof authenticated by the seal of
the court or agency concerned.
(c) A provider may be excluded on a voluntary basis at any time.
Sec. 10.817 How are OWCP's exclusion procedures initiated?
(a) Upon receipt of information indicating that a physician,
hospital or provider of medical services or supplies (hereinafter the
provider) has or may have engaged in activities enumerated in Sec.
10.815(c) through (j) OWCP will forward that information to the
Department of Labor's Office of Inspector General (DOL OIG) for its
consideration. If the information was provided directly to DOL OIG, DOL
OIG will notify OWCP of its receipt and implement the appropriate
action within its authority, unless such notification will or may
compromise the identity of confidential sources, or compromise or
prejudice an ongoing or potential criminal investigation.
(b) DOL OIG will conduct such action as it deems necessary, and,
when appropriate, provide a written report as described in paragraph
(c) of this section to OWCP. OWCP will then determine whether to
initiate procedures to exclude the provider from participation in the
FECA program. If DOL OIG determines not to take any further action, it
will promptly notify OWCP.
(c) If DOL OIG discovers reasonable cause to believe that
violations of
[[Page 37942]]
Sec. 10.815 have occurred, it shall, when appropriate, prepare a
written report, i.e., investigative memorandum, and forward that report
along with supporting evidence to OWCP. The report shall be in the form
of a single memorandum in narrative form with attachments.
(1) The report should contain all of the following elements:
(i) A brief description and explanation of the subject provider or
providers;
(ii) A concise statement of the DOL OIG's findings upon which
exclusion may be based;
(iii) A summary of the events that make up the DOL OIG's findings;
(iv) A discussion of the documentation supporting the DOL OIG's
findings;
(v) A discussion of any other information that may have bearing
upon the exclusion process; and
(vi) The supporting documentary evidence including any expert
opinion rendered in the case.
(2) The attachments to the report should be provided in a manner
that they may be easily referenced from the report.
Sec. 10.818 How is a provider notified of OWCP's intent to exclude
him or her?
Following receipt of the investigative report, OWCP will determine
if there exists a reasonable basis to exclude the provider or
providers. If OWCP determines that such a basis exists, OWCP shall
initiate the exclusion process by sending the provider a letter, by
certified mail and with return receipt requested (or equivalent service
from a commercial carrier), which shall contain the following:
(a) A concise statement of the grounds upon which exclusion shall
be based;
(b) A summary of the information, with supporting documentation,
upon which OWCP has relied in reaching an initial decision that
exclusion proceedings should begin;
(c) An invitation to the provider to:
(1) Resign voluntarily from eligibility for providing services
under this part without admitting or denying the allegations presented
in the letter; or
(2) Request a decision on exclusion based upon the existing record
and any additional documentary information the provider may wish to
furnish;
(d) A notice of the provider's right, in the event of an adverse
ruling by the deciding official, to request a formal hearing before an
administrative law judge;
(e) A notice that should the provider fail to answer (as described
in Sec. 10.819) the letter of intent within 60 days of receipt, the
deciding official may deem the allegations made therein to be true and
may order exclusion of the provider without conducting any further
proceedings; and
(f) The address to where the answer from the provider should be
sent.
Sec. 10.819 What requirements must the provider's answer and OWCP's
decision meet?
(a) The provider's answer shall be in writing and shall include an
answer to OWCP's invitation to resign voluntarily. If the provider does
not offer to resign, he or she shall request that a determination be
made upon the existing record and any additional information provided.
(b) Should the provider fail to answer the letter of intent within
60 days of receipt, the deciding official may deem the allegations made
therein to be true and may order exclusion of the provider.
(c) The provider may inspect or request copies of information in
the record at any time prior to the deciding official's decision by
making such request to OWCP within 20 days of receipt of the letter of
intent.
(d) Any response from the provider will be forwarded to DOL OIG,
which shall have 30 days to answer the provider's response. That answer
will be forwarded to the provider, who shall then have 15 days to
reply.
(e) The deciding official shall be the Regional Director in the
region in which the provider is located unless otherwise specified by
the Director of the Division of Federal Employees' Compensation.
(f) The deciding official shall issue his or her decision in
writing, and shall send a copy of the decision to the provider by
certified mail, return receipt requested (or equivalent service from a
commercial carrier). The decision shall advise the provider of his or
her right to request, within 30 days of the date of an adverse
decision, a formal hearing before an administrative law judge under the
procedures set forth in Sec. Sec. 10.820 through 10.823. The filing of
a request for a hearing within the time specified shall stay the
effectiveness of the decision to exclude.
Sec. 10.820 How can an excluded provider request a hearing?
A request for a hearing shall be sent to the deciding official and
shall contain:
(a) A concise notice of the issues on which the provider desires to
give evidence at the hearing;
(b) Any request for the presentation of oral argument or evidence;
and
(c) Any request for a certification of questions concerning
professional medical standards, medical ethics or medical regulation
for an advisory opinion from a competent recognized professional
organization or Federal, State or local regulatory body.
Sec. 10.821 How are hearings assigned and scheduled?
(a) If the deciding official receives a timely request for hearing,
the OWCP representative shall refer the matter to the Chief
Administrative Law Judge of the Department of Labor, who shall assign
it for an expedited hearing. The administrative law judge assigned to
the matter shall consider the request for hearing, act on all requests
therein, and issue a Notice of Hearing and Hearing Schedule for the
conduct of the hearing. A copy of the hearing notice shall be served on
the provider by certified mail, return receipt requested. The Notice of
Hearing and Hearing Schedule shall include:
(1) A ruling on each item raised in the request for hearing;
(2) A schedule for the prompt disposition of all preliminary
matters, including requests for the certification of questions to
advisory bodies; and
(3) A scheduled hearing date not less than 30 days after the date
the schedule is issued, and not less than 15 days after the scheduled
conclusion of preliminary matters, provided that the specific time and
place of the hearing may be set on 10 days' notice.
(b) The provider is entitled to be heard on any matter placed in
issue by his or her response to the Notice of Intent to Exclude, and
may designate ``all issues'' for purposes of hearing. However, a
specific designation of issues is required if the provider wishes to
interpose affirmative defenses, or request the issuance of subpoenas or
the certification of questions for an advisory opinion.
Sec. 10.822 How are subpoenas or advisory opinions obtained?
(a) The provider may apply to the administrative law judge for the
issuance of subpoenas upon a showing of good cause therefor.
(b) A certification of a request for an advisory opinion concerning
professional medical standards, medical ethics or medical regulation to
a competent recognized or professional organization or Federal, State
or local regulatory agency may be made:
(1) As to an issue properly designated by the provider, in the
sound discretion of the administrative law judge, provided that the
request will not unduly delay the proceedings;
(2) By OWCP on its own motion either before or after the
institution of
[[Page 37943]]
proceedings, and the results thereof shall be made available to the
provider at the time that proceedings are instituted or, if after the
proceedings are instituted, within a reasonable time after receipt. The
opinion, if rendered by the organization or agency, is advisory only
and not binding on the administrative law judge.
Sec. 10.823 How will the administrative law judge conduct the hearing
and issue the recommended decision?
(a) To the extent appropriate, proceedings before the
administrative law judge shall be governed by 29 CFR part 18.
(b) The administrative law judge shall receive such relevant
evidence as may be adduced at the hearing. Parties to the hearing are
the provider and OWCP. Evidence shall be presented under oath, orally
or in the form of written statements. The administrative law judge
shall consider the Notice and Response, including all pertinent
documents accompanying them, and may also consider any evidence which
refers to the provider or to any claim with respect to which the
provider has provided medical services, hospital services, or medical
services and supplies, and such other evidence as the administrative
law judge may determine to be necessary or useful in evaluating the
matter.
(c) All hearings shall be recorded and the original of the complete
transcript shall become a permanent part of the official record of the
proceedings.
(d) Pursuant to 5 U.S.C. 8126 and 29 CFR part 18, the
administrative law judge may issue subpoenas, administer oaths, and
examine witnesses with respect to the proceedings.
(e) At the conclusion of the hearing, the administrative law judge
shall issue a recommended decision and cause it to be served on all
parties to the proceeding, their representatives and the Director of
OWCP.
Sec. 10.824 How does the recommended decision become final?
(a) Within 30 days from the date the recommended decision is
issued, each party may state, in writing, whether the party objects to
the recommended decision. This written statement should be filed with
the Director of OWCP.
(b) For purposes of determining whether the written statement
referred to in paragraph (a) of this section has been timely filed with
the Director, the statement will be considered to be ``filed'' on the
date that the provider mails it to the Director, as determined by
postmark or the date that such written statement is actually received
by the Director, whichever is earlier.
(c) Written statements objecting to the recommended decision may be
filed upon one or more of the following grounds:
(1) A finding or conclusion of material fact is not supported by
substantial evidence;
(2) A necessary legal conclusion is erroneous;
(3) The decision is contrary to law or to the duly promulgated
rules or decisions of the Director;
(4) A substantial question of law, policy, or discretion is
involved; or
(5) A prejudicial error of procedure was committed.
(d) Each issue shall be separately numbered and plainly and
concisely stated, and shall be supported by detailed citations to the
record when assignments of error are based on the record, and by
statutes, regulations or principal authorities relied upon. Except for
good cause shown, no assignment of error by any party shall rely on any
question of fact or law upon which the administrative law judge had not
been afforded an opportunity to pass.
(e) If a written statement of objection is filed within the
allotted period of time, the Director will review the objection. The
Director will forward the written objection to the DOL OIG, which will
have 14 calendar days from that date to respond. Any response from DOL
OIG will be forwarded to the provider, which will have 14 calendar days
from that date to reply.
(f) The Director of OWCP will consider the recommended decision,
the written record and any response or reply received and will then
issue a written, final decision either upholding or reversing the
exclusion.
(g) If no written statement of objection is filed within the
allotted period of time, the Director of OWCP will issue a written,
final decision accepting the recommendation of the administrative law
judge.
(h) The decision of the Director of OWCP shall be final with
respect to the provider's participation in the program, and shall not
be subject to further review by any court or agency.
Sec. 10.825 What are the effects of exclusion?
(a) OWCP may give notice of the exclusion of a physician, hospital
or provider of medical services or supplies:
(1) All OWCP district offices;
(2) All Federal employers;
(3) The CMS;
(4) The State or local authority responsible for licensing or
certifying the excluded party.
(b) Notwithstanding any exclusion of a physician, hospital, or
provider of medical services or supplies under this subpart, OWCP shall
not refuse an employee reimbursement for any otherwise reimbursable
medical treatment, service or supply if:
(1) Such treatment, service or supply was rendered in an emergency
by an excluded physician; or
(2) The employee could not reasonably have been expected to have
known of such exclusion.
(c) An employee who is notified that his or her attending physician
has been excluded shall have a new right to select a qualified
physician.
Sec. 10.826 How can an excluded provider be reinstated?
(a) If a physician, hospital, or provider of medical services or
supplies has been automatically excluded pursuant to Sec. 10.816, the
provider excluded will automatically be reinstated upon notice to OWCP
that the conviction or exclusion which formed the basis of the
automatic exclusion has been reversed or withdrawn. However, an
automatic reinstatement shall not preclude OWCP from instituting
exclusion proceedings based upon the underlying facts of the matter.
(b) A physician, hospital, or provider of medical services or
supplies excluded from participation as a result of an order issued
pursuant to this subpart may apply for reinstatement one year after the
entry of the order of exclusion, unless the order expressly provides
for a shorter period. An application for reinstatement shall be
addressed to the Director for Federal Employees' Compensation, and
shall contain a concise statement of the basis for the application. The
application should be accompanied by supporting documents and
affidavits.
(c) A request for reinstatement may be accompanied by a request for
an oral presentation. Oral presentations will be allowed only in
unusual circumstances where it will materially aid the decision
process.
(d) The Director of OWCP shall order reinstatement only in
instances where such reinstatement is clearly consistent with the goal
of this subpart to protect the FECA program against fraud and abuse. To
satisfy this requirement the provider must provide reasonable
assurances that the basis for the exclusion will not be repeated.
Subpart J--Death Gratuity
Sec. 10.900 What is the death gratuity under this subpart?
(a) The death gratuity authorized by 5 U.S.C. 8102a and payable
pursuant to the provisions of this subpart is a
[[Page 37944]]
payment to a claimant who is an eligible survivor (as defined in
Sec. Sec. 10.906 and 10.907) or a designated alternate beneficiary (as
defined in Sec. Sec. 10.908 and 10.909) of an employee who dies of
injuries incurred in connection with the employee's service with an
Armed Force in a contingency operation. This payment was authorized by
section 1105 of Public Law 110-181 (2008). For the purposes of this
subchapter, the term ``Armed Force'' means the Army, Navy, Air Force,
Marine Corps, and Coast Guard.
(b) This death gratuity payment is a FECA benefit, as defined by
Sec. 10.5(a) of this part. All the provisions and definitions in this
part apply to claims for payment under this subpart unless otherwise
specified.
Sec. 10.901 Which employees are covered under this subpart?
For purposes of this subpart, the term ``employee'' means all
employees defined in 5 U.S.C. 8101 and Sec. 10.5 of this part and all
non-appropriated fund instrumentality employees as defined in 10 U.S.C.
1587(a)(1).
Sec. 10.902 Does every employee's death due to injuries incurred in
connection with his or her service with an Armed Force in a contingency
operation qualify for the death gratuity?
Yes. All such deaths that occur on or after January 28, 2008 (the
date of enactment of Public Law 110-181 (2008)) qualify for the death
gratuity administered by this subpart.
Sec. 10.903 Is the death gratuity payment applicable retroactively?
An employee's death qualifies for the death gratuity if the
employee died on or after October 7, 2001, and before January 28, 2008,
if the death was a result of injuries incurred in connection with the
employee's service with an Armed Force in the theater of operations of
Operation Enduring Freedom or Operation Iraqi Freedom.
Sec. 10.904 Does a death as a result of occupational disease qualify
for payment of the death gratuity?
Yes--throughout this subpart, the word ``injury'' is defined as it
is in 5 U.S.C. 8101(5), which includes a disease proximately caused by
employment. If an employee's death results from an occupational disease
incurred in connection with the employee's service in a contingency
operation, the death qualifies for payment of the death gratuity under
this subpart.
Sec. 10.905 If an employee incurs a covered injury in connection with
his or her service with an Armed Force in a contingency operation but
does not die of the injury until years later, does the death qualify
for payment of the death gratuity?
Yes--as long as the employee's death is a result of injuries
incurred in connection with the employee's service with an Armed Force
in a contingency operation, the death qualifies for the death gratuity
of this subpart regardless of how long after the injury the employee's
death occurs.
Sec. 10.906 What special statutory definitions apply to survivors
under this subpart?
For the purposes of paying the death gratuity to eligible survivors
under this subpart, OWCP will use the following definitions:
(a) ``Surviving spouse'' means the person who was legally married
to the deceased employee at the time of his or her death.
(b) ``Children'' means, without regard to age or marital status,
the deceased employee's natural children and adopted children. It also
includes any stepchildren who were a part of the decedent's household
at the time of death.
(1) A stepchild will be considered part of the decedent's household
if the decedent and the stepchild share the same principal place of
abode in the year prior to the decedent's death. The decedent and
stepchild will be considered as part of the same household
notwithstanding temporary absences due to special circumstances such as
illness, education, business travel, vacation travel, military service,
or a written custody agreement under which the stepchild is absent from
the employee's household for less than 180 days of the year.
(2) A natural child who is an illegitimate child of a male decedent
is included in the definition of ``children'' under this subpart if:
(i) The child has been acknowledged in writing signed by the
decedent;
(ii) The child has been judicially determined, before the
decedent's death, to be his child;
(iii) The child has been otherwise proved, by evidence satisfactory
to the employing agency, to be the decedent's child; or
(iv) The decedent had been judicially ordered to contribute to the
child's support.
(c) ``Parent'' or ``parents'' mean the deceased employee's natural
father and mother or father and mother through adoption. It also
includes persons who stood in loco parentis to the decedent for a
period of not less than one year at any time before the decedent became
an employee.
(1) A person stood in loco parentis when the person assumed the
status of parent toward the deceased employee. (Any person who takes a
child of another into his or her home and treats the child as a member
of his or her family, providing parental supervision, support, and
education as if the child were his or her own child, will be considered
to stand in loco parentis.)
(2) Only one father and one mother, or their counterparts in loco
parentis, may be recognized in any case.
(3) Preference will be given to those who exercised a parental
relationship on the date, or most nearly before the date, on which the
decedent became an employee.
(d) ``Brother'' and ``sister'' mean any person, without regard to
age or marital status, who is a natural brother or sister of the
decedent, a half-brother or half-sister, or a brother or sister through
adoption. Step-brothers or step-sisters of the decedent are not
considered a ``brother'' or a ``sister.''
Sec. 10.907 What order of precedence will OWCP use to determine which
survivors are entitled to receive the death gratuity payment under this
subpart?
If OWCP determines that an employee's death qualifies for the death
gratuity, the FECA provides that the death gratuity payment will be
disbursed to the living survivor(s) highest on the following list:
(a) The employee's surviving spouse.
(b) The employee's children, in equal shares.
(c) The employee's parents, brothers, and sisters, or any
combination of them, if designated by the employee pursuant to the
designation procedures in Sec. 10.909.
(d) The employee's parents, in equal shares.
(e) The employee's brothers and sisters, in equal shares.
Sec. 10.908 Can an employee designate alternate beneficiaries to
receive a portion of the death gratuity payment?
An employee may designate another person or persons to receive not
more than 50 percent of the death gratuity payment pursuant to the
designation procedures in Sec. 10.909. Only living persons, rather
than trusts, corporations or other legal entities, may be designated
under this subsection. The balance of the death gratuity will be paid
according to the order of precedence described in Sec. 10.907.
[[Page 37945]]
Sec. 10.909 How does an employee designate a variation in the order
or percentage of gratuity payable to survivors and how does the
employee designate alternate beneficiaries?
(a) Form CA-40 must be used to make a variation in the order or
percentages of survivors under Sec. 10.907 and/or to make an alternate
beneficiary designation under Sec. 10.908. A designation may be made
at any time before the employee's death, regardless of the time of
injury. The form will not be valid unless it is signed by the employee
and received and signed prior to the death of the employee by the
supervisor of the employee or by another official of the employing
agency authorized to do so.
(b) Alternatively, any paper executed prior to the effective date
of this regulation that specifies an alternate beneficiary of the death
gratuity payment will serve as a valid designation if it is in writing,
completed before the employee's death, signed by the employee, and
signed prior to the death of the employee by the supervisor of the
employee or by another official of the employing agency authorized to
do so.
(c) If an employee makes a survivor designation under Sec.
10.907(c), but does not designate the portions to be received by each
designated survivor, the death gratuity will be disbursed to the
survivors in equal shares.
(d) An alternate beneficiary designation made under Sec. 10.908
must indicate the percentage of the death gratuity, in 10 percent
increments up to the maximum of 50 percent, that the designated
person(s) will receive. No more than five alternate beneficiaries may
be designated. If the designation fails to indicate the percentage to
be paid to an alternate beneficiary, the designation to that person
will be invalid.
Sec. 10.910 What if a person entitled to a portion of the death
gratuity payment dies after the death of the covered employee but
before receiving his or her portion of the death gratuity?
(a) If a person entitled to all or a portion of the death gratuity
due to the order of precedence for survivors in Sec. 10.907 dies after
the death of the covered employee but before the person receives the
death gratuity, the portion will be paid to the living survivors
otherwise eligible according to the order of precedence prescribed in
that subsection.
(b) If a survivor designated under the survivor designation
provision in Sec. 10.907(c) dies after the death of the covered
employee but before receiving his or her portion of the death gratuity,
the survivor's designated portion will be paid to the next living
survivors according to the order of precedence.
(c) If a person designated as an alternate beneficiary under Sec.
10.908 dies after the death of the covered employee but before the
person receives his or her designated portion of the death gratuity,
the designation to that person will have no effect. The portion
designated to that person will be paid according to the order of
precedence prescribed in Sec. 10.907.
(d) If there are no living survivors or alternate beneficiaries,
the death gratuity will not be paid.
Sec. 10.911 How is the death gratuity payment process initiated?
(a) Either the employing agency or a living claimant (survivor or
alternate beneficiary) may initiate the death gratuity payment process.
If the death gratuity payment process is initiated by the employing
agency notifying OWCP of the employee's death, each claimant must file
a claim with OWCP in order to receive payment of the death gratuity.
The legal representative or guardian of any minor child may file on the
child's behalf. Alternatively, if a claimant initiates the death
gratuity payment process by filing a claim, the employing agency must
complete a death notification form and submit it to OWCP. Other
claimants must also file a claim for their portion of the death
gratuity.
(b) The employing agency must notify OWCP immediately upon learning
of an employee's death that may be eligible for benefits under this
subpart, by submitting form CA-42 to OWCP. The agency must also submit
to OWCP any designation forms completed by the employee, and the agency
must provide as much information as possible about any living survivors
or alternate beneficiaries of which the agency is aware.
(1) OWCP will then contact any living survivor(s) or alternate
beneficiary(ies) it is able to identify.
(2) OWCP will furnish claim form CA-41 to any identified
survivor(s) or alternate beneficiary(ies) and OWCP will provide
information to them explaining how to file a claim for the death
gratuity.
(c) Alternatively, any claimant may file a claim for death gratuity
benefits with OWCP. Form CA-41 may be used for this purpose. The
claimant will be required to provide any information that he or she has
regarding any other beneficiaries who may be entitled to the death
gratuity payment. The claimant must disclose, in addition to the Social
Security number (SSN) of the deceased employee, the SSNs (if known) and
all known contact information of all other possible claimants who may
be eligible to receive the death gratuity payment. The claimant must
also identify, if known, the agency that employed the deceased employee
when he or she incurred the injury that caused his or her death. OWCP
will then contact the employing agency and notify the agency that it
must complete and submit form CA-42 for the employee. OWCP will also
contact any other living survivor(s) or alternate beneficiary(ies) it
is able to identify, furnish to them claim form CA-41, and provide
information explaining how to file a claim for the death gratuity.
(d) If a claimant submits a claim for the death gratuity to an
employing agency, the agency must promptly transmit the claim to OWCP.
This includes both claim forms CA-41 and any other claim or paper
submitted which appears to claim compensation on account of the
employee's death.
Sec. 10.912 What is required to establish a claim for the death
gratuity payment?
Claim form CA-41 describes the basic requirements. Much of the
required information will be provided by the employing agency when it
completes notification form CA-42. However, the claimant bears the
burden of proof to ensure that OWCP has the evidence needed to
establish the claim. OWCP may send any request for additional evidence
to the claimant and to his or her representative, if any. Evidence
should be submitted in writing. The evidence submitted must be
reliable, probative, and substantial. Each claim for the death gratuity
must establish the following before OWCP can pay the gratuity:
(a) That the claim was filed within the time limits specified by
the FECA, as prescribed in 5 U.S.C. 8122 and this part. Timeliness is
based on the date that the claimant filed the claim for the death
gratuity under Sec. 10.911, not the date the employing agency
submitted form CA-42. As procedures for accepting and paying
retroactive claims were not available prior to the publication of the
interim final rule, the applicable statute of limitations began to run
for a retroactive payment under this subpart on August 18, 2009.
(b) That the injured person, at the time he or she incurred the
injury or disease, was an employee of the United States as defined in 5
U.S.C. 8101(1) and Sec. 10.5(h) of this part, or a non-appropriated
fund instrumentality employee, as defined in 10 U.S.C. 1587(a)(1).
[[Page 37946]]
(c) That the injury or disease occurred and that the employee's
death was causally related to that injury or disease. The death
certificate of the employee must be provided. Often, the employing
agency will provide the death certificate and any needed medical
documentation. OWCP may request from the claimant any additional
documentation that may be needed to establish the claim.
(d) That the employee incurred the injury or disease in connection
with the employee's service with an Armed Force in a contingency
operation. This will be determined from evidence provided by the
employing agency or otherwise obtained by OWCP and from any evidence
provided by the claimant.
(1) Section 8102a defines ``contingency operation'' to include
humanitarian operations, peacekeeping operations, and similar
operations. (``Similar operations'' will be determined by OWCP.)
(i) A ``contingency operation'' is defined by 10 U.S.C. 101(a)(13)
as a military operation that--
(A) Is designated by the Secretary of Defense as an operation in
which members of the armed forces are or may become involved in
military actions, operations, or hostilities against an enemy of the
United States or against an opposing military force; or
(B) Results in the call or order to, or retention on, active duty
of members of the uniformed services under section 688, 12301(a),
12302, 12304, 12305, or 12406 of Title 10, chapter 15 of Title 10, or
any other provision of law during a war or during a national emergency
declared by the President or Congress.
(ii) A ``humanitarian or peacekeeping operation'' is defined by 10
U.S.C. 2302(8) as a military operation in support of the provision of
humanitarian or foreign disaster assistance or in support of a
peacekeeping operation under chapter VI or VII of the Charter of the
United Nations. The term does not include routine training, force
rotation, or stationing.
(iii) ``Humanitarian assistance'' is defined by 10 U.S.C. 401(e) to
mean medical, surgical, dental, and veterinary care provided in areas
of a country that are rural or are underserved by medical, surgical,
dental, and veterinary professionals, respectively, including
education, training, and technical assistance related to the care
provided; construction of rudimentary surface transportation systems;
well drilling and construction of basic sanitation facilities;
rudimentary construction and repair of public facilities.
(2) A contingency operation may take place within the United States
or abroad. However, operations of the National Guard are only
considered ``contingency operations'' for purposes of this subpart when
the President, Secretary of the Army, or Secretary of the Air Force
calls the members of the National Guard into service. A ``contingency
operation'' does not include operations of the National Guard when
called into service by a Governor of a State.
(3) To show that the injury or disease was incurred ``in connection
with'' the employee's service with an Armed Force in a contingency
operation, the claim must show that the employee incurred the injury or
disease while in the performance of duty as that phrase is defined for
the purposes of otherwise awarding benefits under FECA.
(4)(i) When the contingency operation occurs outside of the United
States, OWCP will find that an employee's injury or disease was
incurred ``in connection with'' the employee's service with an Armed
Force in a contingency operation if the employee incurred the injury or
disease while performing assignments in the same region as the
operation, unless there is conclusive evidence that the employee's
service was not supporting the Armed Force's operation.
(ii) Economic or social development projects, including service on
Provincial Reconstruction Teams, undertaken by covered employees in
regions where an Armed Force is engaged in a contingency operation will
be considered to be supporting the Armed Force's operation.
(5) To show that an employee's injury or disease was incurred ``in
connection with'' the employee's service with an Armed Force in a
contingency operation, the claimant will be required to establish that
the employee's service was supporting the Armed Force's operation. The
death gratuity does not cover Federal employees who are performing
service within the United States that is not supporting activity being
performed by an Armed Force.
(e) The claimant must establish his or her relationship to the
deceased employee so that OWCP can determine whether the claimant is
the survivor entitled to receive the death gratuity payment according
to the order of precedence prescribed in Sec. 10.907.
Sec. 10.913 In what situations will OWCP consider that an employee
incurred injury in connection with his or her service with an Armed
Force in a contingency operation?
(a) OWCP will consider that an employee incurred injury in
connection with service with an Armed Force in a contingency operation
if:
(1) The employee incurred injury while serving under the direction
or supervision of an official of an Armed Force conducting a
contingency operation; or
(2) The employee incurred injury while riding with members of an
Armed Force in a vehicle or other conveyance deployed to further an
Armed Force's objectives in a contingency operation.
(b) An employee may incur injury in connection with service with an
Armed Force in a contingency operation in situations other than those
listed above. Additional situations will be determined by OWCP on a
case-by-case basis.
Sec. 10.914 What are the responsibilities of the employing agency in
the death gratuity payment process?
Because some of the information needed to establish a claim under
this subpart will not be readily available to the claimants, the
employing agency of the deceased employee has significant
responsibilities in the death gratuity claim process. These
responsibilities are as follows:
(a) The agency must completely fill out form CA-42 immediately upon
learning of an employee's death that may be eligible for benefits under
this subpart. The agency must complete form CA-42 as promptly as
possible if notified by OWCP that a survivor filed a claim based on the
employee's death. The agency should provide as much information as
possible regarding the circumstances of the employee's injury and his
or her assigned duties at the time of the injury, so that OWCP can
determine whether the injury was incurred in the performance of duty
and whether the employee was performing service in connection with an
Armed Force in a contingency operation at the time.
(b) The employing agency must promptly transmit any form CA-41s
received from claimants to OWCP. The employer must also promptly
transmit to OWCP any other claim or paper submitted that appears to
claim compensation on account of the employee's death.
(c) The employing agency must maintain any designations completed
by the employee and signed by a representative of the agency in the
[[Page 37947]]
employee's official personnel file or a related system of records. The
agency must forward any such forms to OWCP if the agency submits form
CA-42 notifying OWCP of the employee's death. The agency must also
forward any other paper signed by the employee and employing agency
that appears to make designations of the death gratuity.
(d) If requested by OWCP, the employing agency must determine
whether a survivor, who is claiming the death gratuity based on his or
her status as an illegitimate child of a deceased male employee, has
offered satisfactory evidence to show that he or she is in fact the
employee's child.
(e) The employing agency must notify OWCP of any other death
gratuity payments under any other law of the United States for which
the employee's death qualifies. The employing agency also must notify
OWCP of any other death gratuity payments that have been paid based on
the employee's death.
(f) Non-appropriated fund instrumentalities must fulfill the same
requirements under this subpart as any other employing agency.
Sec. 10.915 What are the responsibilities of OWCP in the death
gratuity payment process?
(a) If the death gratuity payment process is initiated by the
employing agency's submission of form CA-42, OWCP will identify living
potential claimants. OWCP will make a reasonable effort to provide
claim form CA-41s to any known potential claimants and provide
instructions on how to file a claim for the death gratuity payment.
(b) If the death gratuity payment process is initiated by a
claimant's submission of a claim, OWCP will contact the employing
agency and prompt it to submit form CA-42. OWCP will then review the
information provided by both the claim and form CA-42, and OWCP will
attempt to identify all living survivors or alternate beneficiaries who
may be eligible for payment of the gratuity.
(c) If OWCP determines that the evidence is not sufficient to meet
the claimant's burden of proof, OWCP will notify the claimant of the
additional evidence needed. The claimant will be allowed at least 30
days to submit the additional evidence required. OWCP may also request
additional information from the employing agency.
(d) OWCP will review the information provided by the claimant and
information provided by the employing agency to determine whether the
claim satisfies all the requirements listed in Sec. 10.912.
(e) OWCP will calculate the amount of the death gratuity payment
and pay the beneficiaries as soon as possible after accepting the
claim.
Sec. 10.916 How is the amount of the death gratuity calculated?
The death gratuity payment under this subpart equals $100,000 minus
the amount of any death gratuity payments that have been paid under any
other law of the United States based on the same death. A death
gratuity payment is a payment in the nature of a gift, beyond
reimbursement for death and funeral expenses, relocation costs, or
other similar death benefits. Only other death gratuity payments will
reduce the amount of the death gratuity provided in this subpart. For
this reason, death benefits provided to the same employee's survivors
such as those under 5 U.S.C. 8133 as well as benefits paid under 5
U.S.C. 8134 are not death gratuity payments, and therefore have no
effect on the amount of the death gratuity provided under this subpart.
(a) A payment provided under section 413 of the Foreign Service Act
of 1980 (22 U.S.C. 3973), is a death gratuity payment, and if a
deceased employee's survivors received that payment for the employee's
death, the amount of the death gratuity paid to the survivors under
this subpart would be reduced by the amount of the Foreign Service Act
death gratuity. Other death gratuities that would affect the
calculation of the amount payable include but are not limited to: the
gratuity provision in section 1603 of the Emergency Supplemental
Appropriations Act for Defense, the Global War on Terror, and Hurricane
Recovery, 2006 (Pub. L. 109-234, June 15, 2006); the $10,000 death
gratuity to the personal representative of civilian employees, at Title
VI, Section 651 of the Omnibus Consolidated Appropriations Act of 1996
(Pub. L. 104-208, September 30, 1996); the death gratuity for members
of the Armed Forces or any employee of the Department of Defense dying
outside the United States while assigned to intelligence duties, at 10
U.S.C. 1489; and the death gratuity for employees of the Central
Intelligence Agency, at 50 U.S.C. 403k.
(b) The amount of the death gratuity under this section will be
calculated before it is disbursed to the employee's survivors or
alternate beneficiaries, by taking into account any death gratuities
paid by the time of disbursement. Therefore, any designations made by
the employee under Sec. 10.909 are only applicable to the amount of
the death gratuity as described in paragraph (a) of this section. The
following examples are intended to provide guidance in this
administration of this subpart.
(1) Example One. An employee's survivors are entitled to the
Foreign Service Act death gratuity; the employee's spouse received
payment in the amount of $80,000 under that Act. A death gratuity is
also payable under FECA; the amount of the FECA death gratuity that is
payable is a total of $20,000. That employee, using Form CA-40 had
designated 50% of the death gratuity under this subpart to be paid to
his neighbor John Smith who is still living. So, 50% of the death
gratuity will be paid to his spouse and the remaining 50% of the death
gratuity paid under this subpart would be paid to John Smith. This
means the surviving spouse will receive $10,000 and John Smith will
receive $10,000.
(2) Example Two. Employee dies in circumstances that would qualify
her for payment of the gratuity under this subpart; her agency has paid
the $10,000 death gratuity pursuant to Public Law 104-208. The employee
had not completed any designation form. The FECA death gratuity is
reduced by the $10,000 death gratuity and employee's spouse receives
$90,000.
(3) Example Three. An employee of the Foreign Service whose annual
salary is $75,000 dies in circumstances that would qualify for payment
of both the Foreign Service Act death gratuity and the death gratuity
under this subpart. Before his death, the employee designated that 40%
of the death gratuity under this subpart be paid to his cousin Jane
Smith, pursuant to the alternate beneficiary designation provision at
Sec. 10.908 and that 10% be paid to his uncle John Doe who has since
died. At the time of his death, the employee had no surviving spouse,
children, parents, or siblings. Therefore, the Foreign Service Act
death gratuity will not be paid, because no eligible survivors
according to the Foreign Service Act provision exist. The death
gratuity under this subpart would equal $100,000, because no other
death gratuity has been paid, and Jane would receive $40,000 according
to the employee's designation. As John Doe is deceased, no death
gratuity may be paid pursuant to the designation of a share of the
death gratuity to him.
0
3. Part 25 is revised to read as follows:
PART 25--COMPENSATION FOR DISABILITY AND DEATH OF NONCITIZEN
FEDERAL EMPLOYEES OUTSIDE THE UNITED STATES
Subpart A--General Provisions
Sec.
[[Page 37948]]
25.1 How are claims of Federal employees who are neither citizens
nor residents adjudicated?
25.2 In general, what is the Director's policy regarding such
claims?
25.3 What is the authority to settle and pay such claims?
25.4 What type of evidence is required to establish a claim under
this part?
25.5 How does OWCP adjudicate claims of non-citizen residents of
possessions or territories?
Subpart B--The Special Schedule of Compensation
25.100 What general provisions does OWCP apply to the Special
Schedule?
25.101 How is compensation for disability paid?
25.102 How is compensation for death of a non-citizen non-resident
employee paid?
Subpart C--Extensions of the Special Schedule of Compensation
25.200 How is the Special Schedule applied for employees in the
Republic of the Philippines?
25.201 How is the Special Schedule applied for employees in
Australia?
25.202 How is the Special Schedule applied for Japanese seamen?
25.203 How is the Special Schedule applied to non-resident aliens in
the Territory of Guam?
Authority: 5 U.S.C. 301, 8137, 8145 and 8149; 1946
Reorganization Plan No. 2, sec. 3, 3 CFR 1943-1948 Comp., p. 1064;
60 Stat. 1095; Reorganization Plan No. 19 of 1950, sec. 1, 3 CFR
1943-1953 Comp., p. 1010; 64 Stat. 1271; Secretary of Labor's Order
No. 10-2009, 74 FR 218.
Subpart A--General Provisions
Sec. 25.1 How are claims of Federal employees who are neither
citizens nor residents adjudicated?
This part describes how OWCP pays compensation under the FECA to
employees of the United States who are neither citizens nor residents
of the United States, any territory or Canada, as well as to any
dependents of such employees. It has been determined that the
compensation provided under the FECA is substantially disproportionate
to the compensation for disability or death which is payable in similar
cases under local law, regulation, custom or otherwise, in areas
outside the United States, any territory or Canada and therefore a
special schedule should apply to such cases This special schedule
applies to any non-citizen non-resident Federal employee who is neither
hired nor employed in the United States, Canada or in a possession or
territory of the United States. Therefore, with respect to the claims
of such employees whose injury (or injury resulting in death) has
occurred subsequent to August 29, 2011, or may occur, the regulations
in this part shall apply.
Sec. 25.2 In general, what is the Director's policy regarding such
claims?
(a) Pursuant to 5 U.S.C. 8137(a)(2), a special schedule is
established by subpart B of this part that applies to any non-citizen
non-resident Federal employee who is neither hired nor employed in the
United States, Canada or in a possession or territory of the United
States (hereinafter non-citizen non-resident employees). The special
schedule in subpart B of this part is subject to the exceptions set
forth in paragraph (b) of this section. The special schedule set forth
in subpart B of this part applies to claims of such employees whose
injury (or injury resulting in death) occurred on or after August 29,
2011.
(b) This special schedule of compensation established by subpart B
of this part shall apply to non-citizen non-resident employees outside
of the United States unless:
(1) The injured employee receives compensation pursuant to a
specific separate agreement between the United States and another
government (or similar compensation from another sovereign government);
(2) The employee receives compensation pursuant to the special
schedule under subpart C for the particular locality, or for a class of
employees in that particular locality; or
(3) The employee otherwise establishes entitlement to compensation
under local law pursuant to Sec. 25.100(e).
(c) Compensation in all cases of such employees paid and closed
prior to August 29, 2011 shall be deemed compromised and paid under 5
U.S.C. 8137. In all other cases, compensation may be adjusted to
conform with the regulations in this part, or the beneficiary may by
compromise or agreement with the Director have compensation continued
on the basis of a previous adjustment of the claim.
(d) Compensation received by beneficiaries pursuant to 5 U.S.C.
8137 and the special schedule set forth in subpart B or as otherwise
specified in paragraph (b) of this section is the exclusive measure of
compensation in cases of injury (or death from injury) to non-citizen
non-resident employees of the United States as specified in paragraph
(a) of this section.
(e) Compensation for disability and death of non-citizen non-
resident employees outside the United States under this part shall in
no event exceed that generally payable under the FECA.
Sec. 25.3 What is the authority to settle and pay such claims?
In addition to the authority to receive, process and pay claims,
when delegated such representative or agency receiving delegation of
authority shall, in respect to cases adjudicated under this part, and
when so authorized by the Director, have authority to make lump-sum
awards (in the manner prescribed by 5 U.S.C. 8135) whenever such
authorized representative shall deem such settlement to be for the best
interest of the United States, and to compromise and pay claims for any
benefits provided for under this part, including claims in which there
is a dispute as to questions of fact or law. The Director shall, in
instructions to the particular representative concerned, establish such
procedures in respect to action under this section as he or she may
deem necessary, and may specify the scope of any administrative review
of such action.
Sec. 25.4 What type of evidence is required to establish a claim
under this part?
Claims of non-citizen non-resident employees of the United States
as specified in Sec. 25.2(a), if otherwise compensable, shall be
approved only upon evidence of the following nature without regard to
the date of injury or death for which the claim is made:
(a) Appropriate certification by the Federal employing
establishment; or
(b) An armed service's casualty or medical record; or
(c) Verification of the employment and casualty by Department of
Defense personnel; or
(d) Recommendation of an armed service's ``Claim Service'' based on
investigations conducted by it.
Sec. 25.5 How does OWCP adjudicate claims of non-citizen residents of
possessions or territories?
An employee who is a bona fide permanent resident of any United
States possession, territory, commonwealth, or trust territory will
receive the full benefits of the FECA, as amended, except that the
application of the minimum benefit provisions provided therein shall be
governed by the restrictions set forth in 5 U.S.C. 8138.
Subpart B--The Special Schedule of Compensation
Sec. 25.100 What general provisions does OWCP apply to the Special
Schedule?
(a) The definitions of terms in the FECA, as amended, shall apply
to terms used in this subpart.
(b) The provisions of the FECA, unless modified by this subpart or
otherwise inapplicable, shall be applied
[[Page 37949]]
whenever possible in the application of this subpart.
(c) The provisions of the regulations for the administration of the
FECA, as amended or supplemented from time to time by instructions
applicable to this subpart, shall apply in the administration of
compensation under this subpart, whenever they can reasonably be
applied.
Sec. 25.101 How is compensation for disability paid?
Compensation for disability shall be paid to the non-citizen non-
resident employee as follows:
(a) Temporary total disability. Where the injured employee is
disabled and unable to earn wages equivalent to those earned at the
time of injury for a period of time less than two years, the employee
shall receive 50 percent of the monthly pay during the period of such
disability.
(b) Temporary partial disability. Where the injured employee is
disabled and unable to earn equivalent wages to those earned at the
time of injury, but who is not totally disabled for work, the injured
employee shall receive during the period of disability, that proportion
of compensation for temporary total disability, as determined under
paragraph (a) of this section, which is equal in percentage to the
degree or percentage of physical impairment caused by the disability.
(c) Permanent total disability. Where it is found that the injured
employee is disabled and will be or has been unable to earn equivalent
wages to those earned at the time of injury for greater than two years,
the employee is deemed permanently disabled. Such employee shall
receive a lump sum settlement based on compensation equaling 50 percent
of the monthly pay or a percentage proportionate to the extent of
disability. The lump sum award shall be made by the manner prescribed
by 5 U.S.C. 8135.
(d) Permanent partial disability. Where there is permanent
disability (impairment) involving the loss, or loss of use, of a member
or function of the body, the injured employee is entitled to schedule
compensation at 50 percent of the monthly pay to be paid in a lump sum
according to 5 U.S.C. 8135, for the following losses and periods:
(1) Arm lost: 312 weeks' compensation.
(2) Leg lost: 288 weeks' compensation.
(3) Hand lost: 244 weeks' compensation.
(4) Foot lost: 205 weeks' compensation.
(5) Eye lost: 160 weeks' compensation.
(6) Thumb lost: 75 weeks' compensation.
(7) First finger lost: 46 weeks' compensation.
(8) Great toe lost: 38 weeks' compensation.
(9) Second finger lost: 30 weeks' compensation.
(10) Third finger lost: 25 weeks' compensation.
(11) Toe, other than great toe, lost: 16 weeks' compensation.
(12) Fourth finger lost: 15 weeks' compensation.
(13) Loss of hearing: One ear, 52 weeks' compensation; both ears,
200 weeks' compensation.
(14) Breast (one) lost: 52 weeks' compensation.
(15) Kidney (one) lost: 156 weeks' compensation.
(16) Larynx lost: 160 weeks' compensation.
(17) Lung (one) lost: 156 weeks' compensation.
(18) Penis lost: 205 weeks' compensation.
(19) Testicle (one) lost: 52 weeks' compensation.
(20) Tongue lost: 160 weeks' compensation.
(21) Ovary (one) lost: 52 weeks' compensation.
(22) Uterus/cervix and vulva/vagina lost: 205 weeks' compensation.
(23) Skin: 205 weeks' compensation.
(24) Phalanges: Compensation for loss of more than one phalanx of a
digit shall be the same as for the loss of the entire digit.
Compensation for loss of the first phalanx shall be one-half of the
compensation for the loss of the entire digit.
(25) Amputated arm or leg: Compensation for an arm or a leg, if
amputated at or above the elbow or the knee, shall be the same as for
the loss of the arm or leg; but, if amputated between the elbow and the
wrist, or between the knee and the ankle, the compensation shall be the
same as for the loss of the hand or the foot.
(26) Binocular vision or percent of vision: Compensation for loss
of binocular vision, or for 80 percent or more of the vision of an eye
shall be the same as for the loss of the eye.
(27) Two or more digits: Compensation for loss of two or more
digits, one or more phalanges of two or more digits of a hand or foot
may be proportioned to the loss of use of the hand or foot occasioned
thereby, but shall not exceed the compensation for the loss of a hand
or a foot.
(28) Total loss of use: Compensation for a permanent total loss of
use of a member shall be the same as for loss of the member.
(29) Partial loss or partial loss of use: Compensation for
permanent partial loss or loss of use of a member may be for
proportionate loss of use of the member.
(30) Consecutive awards: In any case in which there occurs a loss
or loss of use of more than one member or parts of more than one member
set forth in paragraph (d) of this section, but not amounting to
permanent total disability, the award of compensation shall be for the
loss or loss of use of each such member or part thereof, which awards
shall run consecutively.
(31) Other cases: In all other cases within this class of
disability the compensation during the continuance of disability shall
be that proportion of compensation for permanent total disability, as
determined under paragraph (c) of this section, which is equal in
percentage to the degree or percentage of physical impairment caused by
the disability.
(32) Compensation under paragraph (d) of this section for permanent
partial disability shall be in addition to any compensation for
temporary total or temporary partial disability under this section, and
awards for temporary total, temporary partial, and permanent partial
disability shall run consecutively.
(e) In the event a beneficiary covered under subpart B can
demonstrate that the amount payable under the special schedule would
result in a payment that would be demonstrably less than the amount
payable under the law of his home country, the Director retains the
discretion to pay that amount of compensation under 5 U.S.C.
8137(a)(2)(A), not to exceed the amount payable under FECA. To request
benefits under this paragraph, the beneficiary must submit the
following:
(1) Translated copies of the applicable local statute as well as
any regulations, policies and procedures the beneficiary avers are
applicable; and
(2) A translated copy of an opinion rendered by an attorney
licensed in that jurisdiction or an advisory opinion from a court or
administrative tribunal that explains the benefits payable to the
beneficiary.
Sec. 25.102 How is compensation for death of a non-citizen non-
resident employee paid?
If the disability causes death, the compensation shall be payable
in the amount and to or for the benefit of the following persons:
(a) To the undertaker or person entitled to reimbursement,
reasonable funeral expenses not exceeding $800.
(b) To the surviving spouse, if there is no child, 30 percent of
the monthly pay
[[Page 37950]]
until his or her death or remarriage subject to the lump sum provisions
of 5 U.S.C. 8135.
(c) To the surviving spouse, if there is a child, the compensation
payable under paragraph (b) of this section, and in addition thereto 10
percent of the monthly wage for each child, not to exceed a total of 50
percent of the monthly pay for such surviving spouse and children
subject to the lump sum provisions of 5 U.S.C. 8135. If a child has a
guardian other than the surviving spouse, the compensation payable on
account of such child shall be paid to such guardian. The compensation
entitlement of any child shall cease when he or she dies, marries or
reaches the age of 18 years, or if over such age and incapable of self-
support, becomes capable of self-support.
(d) To the children, if there is no surviving spouse, 25 percent of
the monthly pay for one child and 10 percent thereof for each
additional child, not to exceed a total of 50 percent of the monthly
pay thereof, divided among such children share and share alike subject
to the lump sum provisions of 5 U.S.C. 8135. The compensation
entitlement of each child shall cease when he or she dies, marries or
reaches the age of 18, or if over such age and incapable of self-
support, becomes capable of self-support. The compensation of a child
under legal age shall be paid to its guardian, if there is one,
otherwise to the person having the custody or care of such child, for
such child, as the Director in his or her discretion shall determine.
(e) To the parents, if one is wholly dependent for support upon the
deceased employee at the time of his or her death and the other is not
dependent to any extent, 20 percent of the monthly pay; if both are
wholly dependent, 10 percent thereof to each; if one is or both are
partly dependent, a proportionate amount in the discretion of the
Director. The compensation to a parent or parents in the percentages
specified shall be paid if there is no surviving spouse or child, but
if there is a surviving spouse or child, there shall be paid so much of
such percentages for a parent or parents as, when added to the total of
the percentages of the surviving spouse and children, will not exceed a
total of 50 percent of the monthly pay. These payments are subject to
the lump sum provision of 5 U.S.C. 8135.
(f) To the brothers, sisters, grandparents and grandchildren, if
one is wholly dependent upon the deceased employee for support at the
time of his or her death, 20 percent of the monthly pay to such
dependent; if more than one are wholly dependent, 30 percent of such
pay, divided among such dependents share and share alike; if there is
no one of them wholly dependent, but one or more are partly dependent,
10 percent of such pay divided among such dependents share and share
alike. The compensation to such beneficiaries shall be paid if there is
no surviving spouse, child or dependent parent. If there is a surviving
spouse, child or dependent parent, there shall be paid so much of the
above percentages as, when added to the total of the percentages
payable to the surviving spouse, children and dependent parents, will
not exceed a total of 50 percent of such pay. These payments are
subject to the lump sum provision of 5 U.S.C. 8135.
(g) The compensation entitlement of each beneficiary under
paragraphs (e) and (f) of this section shall be paid until he or she,
if a parent or grandparent, dies, marries or ceases to be dependent,
or, if a brother, sister or grandchild, dies, marries or reaches the
age of 18 years, or if over such age and incapable of self-support,
becomes capable of self-support. The compensation of a brother, sister
or grandchild under legal age shall be paid to his or her guardian, if
there is one, otherwise to the person having the custody or care of
such person, for such person, as the Director in his or her discretion
shall determine.
(h) Upon the cessation of any person's compensation for death under
this subpart, the compensation of any remaining person entitled to
continuing compensation in the same case shall remain the same so that
the continuing compensation shall be at the same rate each person
previously received.
(i) In cases where there are two or more classes of persons
entitled to compensation for death under this subpart, and the
apportionment of such compensation as provided in this section would
result in injustice, the Director may in his or her discretion modify
the apportionments to meet the requirements of the case.
(j) Compensation for death shall be paid where practicable in a
lump sum pursuant to section 8135.
(k) In the event a beneficiary eligible for death benefits covered
under subpart B can demonstrate that the amount payable under the
special schedule would result in a payment that would be demonstrably
less than the amount payable under the law of his home country, the
Director retains the discretion to pay that amount of compensation
under 5 U.S.C. 8137(a)(2)(A), not to exceed the amount payable under
FECA. To request benefits under this paragraph, the beneficiary must
submit the following:
(1) Translated copies of the applicable local statute as well as
any regulations, policies and procedures the beneficiary asserts are
applicable; and
(2) A translated copy of an opinion rendered by an attorney
licensed in that jurisdiction or an advisory opinion from a court or
administrative tribunal that explains the benefits payable to the
beneficiary.
(l) A FECA death gratuity of $65,000 may be payable for the death
of a non-citizen non-resident employee should the death be a result of
injury incurred in connection with service with an Armed Force in a
contingency operation as set forth in subpart J of part 10.
Subpart C--Extensions of the Special Schedule of Compensation
Sec. 25.200 How is the Special Schedule applied for employees in the
Republic of the Philippines?
(a) Modified special schedule of compensation. Except for injury or
death of direct-hire employees of the U.S. Military Forces covered by
the Philippine Medical Care Program and the Employees' Compensation
Program pursuant to the agreement signed by the United States and the
Republic of the Philippines on March 10, 1982 who are also members of
the Philippine Social Security System, the special schedule of
compensation established in subpart B of this part shall apply, with
the modifications or additions specified in paragraphs (b) through (k)
of this section, in the Republic of the Philippines, to injury or death
occurring on or after July 1, 1968, with the following limitations:
(1) Temporary disability. Benefits for payments accruing on and
after July 1, 1969, for injuries causing temporary disability and which
occurred on and after July 1, 1968, shall be payable at the rates in
the special schedule as modified in this section.
(2) Permanent disability and death. Benefits for injuries occurring
on and after July 1, 1968, which cause permanent disability or death,
shall be payable at the rates specified in the special schedule as
modified in this section for all awards not paid in full before July 1,
1969, and any award paid in full prior to July 1, 1969: Provided, that
application for adjustment is made, and the adjustment will result in
additional benefits of at least $10. In the case of injuries or death
occurring on or after December 8, 1941 and prior to July 1, 1968, the
special schedule as modified in this section may be applied to
prospective awards for permanent
[[Page 37951]]
disability or death, provided that the monthly and aggregate maximum
provisions in effect at the time of injury or death shall prevail.
These maxima are $50 and $4,000, respectively.
(b) Death benefits. 400 weeks' compensation at two-thirds of the
weekly wage rate, shared equally by the eligible survivors in the same
class.
(c) Death beneficiaries. Benefits are payable to the survivors in
the following order of priority (all beneficiaries in the highest
applicable classes are entitled to share equally):
(1) Surviving spouse and unmarried children under 18, or over 18
and totally incapable of self-support.
(2) Dependent parents.
(3) Dependent grandparents.
(4) Dependent grandchildren, brothers and sisters who are unmarried
and under 18, or over 18 and totally incapable of self-support.
(d) Burial allowance. 14 weeks' wages or $400, whichever is less,
payable to the eligible survivor(s), regardless of the actual expense.
If there is no eligible survivor, actual burial expenses may be paid or
reimbursed, in an amount not to exceed what would be paid to an
eligible survivor.
(e) Permanent total disability. 400 weeks' compensation at two-
thirds of the weekly wage rate.
(f) Permanent partial disability. Where applicable, the
compensation provided in Sec. 25.100(c)(1) through (19) subject to an
aggregate limitation of 400 weeks' compensation. In all other cases,
provided for permanent total disability that proportion of the
compensation (paragraph (e) of this section) which is equivalent to the
degree or percentage of physical impairment caused by the disability.
(g) Temporary partial disability. Two-thirds of the weekly loss of
wage-earning capacity.
(h) Compensation period for temporary disability. Compensation for
temporary disability is payable for a maximum period of 80 weeks.
(i) Maximum compensation. The total aggregate compensation payable
in any case, for injury or death or both, shall not exceed $8,000,
exclusive of medical costs and burial allowance. The weekly rate of
compensation for disability or death shall not exceed $35.
(j) Method of payment. Only compensation for temporary disability
shall be payable periodically. Compensation for permanent disability
and death shall be payable in full at the time the extent of
entitlement is established.
(k) Exceptions. The Director in his or her discretion may make
exceptions to the regulations in this section by:
(1) Reapportioning death benefits, for the sake of equity.
(2) Excluding from consideration potential death beneficiaries who
are not available to receive payment.
(3) Paying compensation for permanent disability or death on a
periodic basis, where this method of payment is considered to be in the
best interest of the beneficiary.
Sec. 25.201 How is the Special Schedule applied for employees in
Australia?
(a) The special schedule of compensation established by subpart B
of this part shall apply in Australia with the modifications or
additions specified in paragraph (b) of this section, as of December 8,
1941, in all cases of injury (or death from injury) which occurred
between December 8, 1941 and December 31, 1961, inclusive, and shall be
applied retrospectively in all such cases of injury (or death from
injury). Compensation in all such cases pending as of July 15, 1946,
shall be readjusted accordingly, with credit taken in the amount of
compensation paid prior to such date. Refund of compensation shall not
be required if the amount of compensation paid in any such case,
otherwise than through fraud, misrepresentation or mistake, and prior
to July 15, 1946, exceeds the amount provided for under this paragraph,
and such case shall be deemed compromised and paid under 5 U.S.C. 8137.
(b) The total aggregate compensation payable in any case under
paragraph (a) of this section, for injury or death or both, shall not
exceed the sum of $4,000, exclusive of medical costs. The maximum
monthly rate of compensation in any such case shall not exceed the sum
of $50.
(c) The benefit amounts payable under the provisions of the
Commonwealth Employees' Compensation Act of 1930-1964, Australia, shall
apply as of January 1, 1962, in Australia, as the exclusive measure of
compensation in cases of injury (or death from injury) according on and
after January 1, 1962, and shall be applied retrospectively in all such
cases, occurring on and after such date: Provided, that the
compensation payable under the provisions of this paragraph shall in no
event exceed that payable under the FECA.
Sec. 25.202 How is the Special Schedule applied for Japanese seamen?
(a) General. The special schedule of compensation established by
subpart B of this part shall apply as of November 1, 1971, with the
modifications or additions specified in paragraphs (b) through (i) of
this section, to injuries sustained outside the continental United
States or Canada by direct-hire Japanese seamen who are neither
citizens nor residents of the United States or Canada and who are
employed by the Military Sealift Command in Japan.
(b) Temporary total disability. Weekly compensation shall be paid
at 75 percent of the weekly wage rate.
(c) Temporary partial disability. Weekly compensation shall be paid
at 75 percent of the weekly loss of wage-earning capacity.
(d) Permanent total disability. Compensation shall be paid in a
lump sum equivalent to 360 weeks' wages.
(e) Permanent partial disability. (1) The provisions of Sec.
25.101 of this part shall apply to the types of permanent partial
disability listed in paragraphs (d)(1) through (13) and (d)(24) through
(29) of that section: Provided that weekly compensation shall be paid
at 75 percent of the weekly wage rate and that the number of weeks
allowed for specified losses shall be changed as follows:
(i) Arm lost: 312 weeks.
(ii) Leg lost: 288 weeks.
(iii) Hand lost: 244 weeks.
(iv) Foot lost: 205 weeks.
(v) Eye lost: 160 weeks.
(vi) Thumb lost: 75 weeks.
(vii) First finger lost: 46 weeks.
(viii) Second finger lost: 30 weeks.
(ix) Third finger lost: 25 weeks.
(x) Fourth finger lost: 15 weeks.
(xi) Great toe lost: 38 weeks.
(xii) Toe, other than great toe lost: 16 weeks.
(2) In all other cases, that proportion of the compensation
provided for permanent total disability in paragraph (d) of this
section which is equivalent to the degree or percentage of physical
impairment caused by the injury.
(f) Death. If there are two or more eligible survivors,
compensation equivalent to 360 weeks' wages shall be paid to the
survivors, share and share alike. If there is only one eligible
survivor, compensation equivalent to 300 weeks' wages shall be paid.
The following survivors are eligible for death benefits:
(1) Spouse who lived with or was dependent upon the employee.
(2) Unmarried children under 21 who lived with or were dependent
upon the employee.
(3) Adult children who were dependent upon the employee by reason
of physical or mental disability.
(4) Dependent parents, grandparents and grandchildren.
(g) Burial allowance. $1,000 payable to the eligible survivor(s),
regardless of actual expenses. If there are no eligible
[[Page 37952]]
survivors, actual expenses may be paid or reimbursed, up to $1,000.
(h) Method of payment. Only compensation for temporary disability
shall be payable periodically, as entitlement accrues. Compensation for
permanent disability and death shall be payable in a lump sum.
(i) Maxima. In all cases, the maximum weekly benefit shall be $130.
Also, except in cases of permanent total disability and death, the
aggregate maximum compensation payable for any injury shall be $51,000.
This amount will be adjusted annually on March 1 in accordance with the
percentage amount determined by the cost of living adjustment under 5
U.S.C. 8146a.
(j) Prior injury. In cases where injury or death occurred prior to
November 1, 1971, benefits will be paid in accordance with regulations
promulgated, contained in 20 CFR parts 1-399, edition revised as of
January 1, 1971.
Sec. 25.203 How is the Special Schedule applied to non-resident
aliens in the Territory of Guam?
The special schedule of compensation established by subpart B of
this part shall apply to an injury or death occurring on or after
August 29, 2011 in the Territory of Guam to non-resident alien
employees recruited in foreign countries for employment by the military
departments in the Territory of Guam. This schedule shall not apply to
any employee who becomes a bona fide permanent resident as such claims
will be decided in accordance with Sec. 25.5.
Signed at Washington, DC this 8th of June, 2011.
Gary A. Steinberg,
Acting Director, Office of Workers' Compensation Programs.
[FR Doc. 2011-14915 Filed 6-27-11; 8:45 am]
BILLING CODE 4510-CH-P